VIDYAWATI Vs. SATISH CHANDRA AGARWAL

JUDGEMENT

(1.) Heard Sri Navin Sinha, learned counsel for the applicant.

(2.) It appears that Smt. Vidyawati, plaintiff-applicant, holds in her favour a decree, passed in Original Suit No. 486 of 19X8 between Smt. Vidyawati and Satish Chandra Agarwal and others, against the opposite parties. Sri Satish Chandra Agarwal, the defendant-opposite party, first set, in the instant revision, has applied for setting aside the said decree under O. IX, R. 13 of the Civil P. C. 1908, hereinafter called the 'Code'. The application of the opposite parly, first set, has been registered as Misc. Case No. 3 of 1989, giving rise to the instant revision. In the said case, the plaintiff-applicant filed an objection with regard to maintainability of the application of the opposite party, first set under O. IX, R. 13 of the Code and urged the court to decide the question of maintainability as preliminary question.

(3.) After hearing the parties, the court below came to the conclusion that the dis posal of the preliminary objection raised by the plaintiff-applicant as well as of the application of the defendant-opposite party, first set, under O. IX, R. 13 of the Code, depended upon investigation of fact and law, both. In the opinion of the court below the enquiry in relation to fact and in relation to law could not be held separately. On the basis of this conclusion the court below, by means of the impugned order dated 2nd May, 1989, overruled the objection of the plaintiff-applicant and rejected her prayer for deciding the question of maintainability of the application of the defendant opposite party, first set, under O. IX, R. 13 of the Code as preliminary question.