GULABI DEVI Vs. KAMLESH KUMAR PAL

JUDGEMENT

(1.) HEARD learned Counsels for the parties.

(2.) COUNTER and rejoinder affidavits have been exchanged which are on record.

(3.) THE contention of the Counsel for the petitioner is that the release ap­plication was decided within a period of two months from the date of filing of release application without giving any opportunity to the petitioner to contest the case or file any evidence disputing the allegations of plaint. The respon­dent moved execution in Execution Case No. 26 of 2004. Meanwhile, a recall ap­plication was moved at the instance of tenant for recalling the ex parte order dated 31.5.2004. This recall application was moved on 1.10.2004 which was also dismissed by the Prescribed Authority/Civil Judge (Junior Division), Varanasi vide order dated 16.1.2008. The petitioner-tenant preferred an ap­peal under Order XXXIV read with Rule 22 of U.P. Act No. 13 of 1972 (wrongly mentioned as Order XLIII, Rule 1 (d) C.P.C.). The said application was dismissed vide order dated 13.8.2008. Both the orders have been challenged in the instant writ petition.