CHHITU Vs. MATHURALAL

JUDGEMENT

(1.) This is a revision at the instance of defendant in Civil Suit No. 87-A/77 in the Court of Civil Judge, Class II, Kasrawad.

(2.) The facts leading to the present revision as stated are these :- The defendant in the present suit had filed a civil suit No. 54A/77 against plaintiffs Nos. 1 to 5 in the present suit in which a compromise decree was pass-ed on 28-4-1977, the plaintiff then filed the present suit for the cancellation of the compromise decree against the defendant; the suit was decreed by the trial Court vide its judgment and decree dated 28-4-1978, the defendant being aggrieved by this, filed an appeal on 16-7-1978 being Civil Regular Appeal No. 40A of 1978 in the lower appellate court in which the defendants were arrayed in the same order as respondent (the appellant in the lower appellate court is referred to hereinafter as defendant and the respondent as plaintiffs); this appeal was barred by time; the defendant, had, therefore, filed an application J. A. No. 1 for condonation of delay under Section 5 of the Limitation Act, 1963 along with the memorandum of appeal; the lower appellate court had issued notice of this application to the plaintiffs; on 14-9-1978 reply of this application was filed on behalf of plaintiff No. 6; the plaintiffs Nos. 2 to 5 were not served, therefore, fresh notices were ordered to be issued and the case was fixed for 6-10-1978 for reply and arguments on I. A. No. 1; on 27-9-1978 on behalf of plaintiffs Nos. 1 to 5, a compromise petition regarding the compromise between defendant and these plaintiffs with permission for compromise on behalf of minor plaintiff No. 3 was filed; but on that date as the Presiding Officer was not there the Reader wrote the order sheet that it shall be placed for court order on 6-10-1978, which was the date already fixed in the appeal; on 4-10-1978, plaintiff No. 1 filed an application for deleting the name of plaintiff No. 6 from the suit as well as the appeal and accepting the compromise, which the lower appellate court directed to be placed for orders on 6-10-1978; again on 5-10-1978, the defendant filed a similar application, whereupon the case was taken up on 5-10-1978, the applications were accepted, plaintiff No. 6's name was ordered to be struck off permission for compromise was granted and in terms of the compromise the appeal was allowed. All this was done without notice to plaintiff No, 6 and in his absence.

(3.) Thereafter on 6-10-1978 the date on which the appeal was already posted vide order sheet dated 14-9-1978, plaintiff No. 6 appeared and applied for reviving the appeal which was allowed vide the impugned order dated 17-111978 of the lower appellate court and the appeal has been revived. It is against this order that the present revision has been filed.