Rama Shanker Lal vs Radhey Shyam (Deceased) And ...
2011 Latest Caselaw 1429 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- WRIT - C No. - 24924 of 2011
 

 
Petitioner :- Rama Shanker Lal
 
Respondent :- Radhey Shyam (Deceased) And Others
 
Petitioner Counsel :- Siddhartha Varma,Bipin Lal Srivastava
 

 
Hon'ble Rajes Kumar,J.

Learned counsel for the petitioner submitted that against the judgment and decree dated 31.7.1978, the appeal has been filed, which has been dismissed on 21.8.1981. The respondents filed second appeal before this Court that has also been dismissed. Now two defendants moved an application under Order 9 Rule 13 C.P.C. for recalling of the ex-parte decree, which has been rejected by the executing court against which revision has been filed. The revisional authority by the impugned order remanded back the matter to the trial court to decide the application afresh.

Learned counsel for the petitioner submitted that once the appeal has been decided against the judgment and decree, the order merged with the appellate order and therefore, an application under Order 9 Rule 13 is not maintainable. He relied upon the decision of the apex Court in the case of P. Kiran Kumar Vs. A.S. Khadar and others, reported in 2002 (47) ALR-797.

Issue notice to the respondents returnable at an early date. The petitioner may take steps to serve the respondents within a week by a registered post.

List in the week commencing 11.7.2011.

Till the next date of listing, the operation of the order dated 31.3.2011 passed in Revision no. 2 of 2010, Lal Bahadur Singh @ Lal Babu and another Vs. Rama Shankar Lal shall remain stayed.

Order Date :- 29.4.2011

OP