Smt. Vidyawati And Others vs Union Of India And Others
2011 Latest Caselaw 1831 ALL

Citation : 2011 Latest Caselaw 1831 ALL
Judgement Date : 19 May, 2011

Allahabad High Court

Smt. Vidyawati And Others vs Union Of India And Others on 19 May, 2011

Bench: Rajes Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- WRIT - C No. - 29024 of 2011
 

 
Petitioner :- Smt. Vidyawati And Others
 
Respondent :- Union Of India And Others
 
Petitioner Counsel :- Vatsal Srivastava
 
Respondent Counsel :- A.S.G.I.
 

 
Hon'ble Rajes Kumar,J.

The petitioners are defendants in the suit. The plaintiffs filed a suit for recovery of dues. The said suit has been decreed ex-parte. The defendants filed an application for recalling of the order under Order 9 Rule 13 C.P.C. and after the rejection of the recalling application, filed regular appeal along with an application under Section 5 of the Limitation Act. The said application under Section 5 of the Limitation Act has been rejected and accordingly appeal has been dismissed as barred by limitation. The respondents then filed an appeal against the order rejecting the application under Order 9 Rule 13 C.P.C. which has been allowed by the appellate authority by the impugned order.

Learned counsel for the petitioners submitted that once the regular appeal against the ex-parte order has been decided and dismissed even as barred by limitation, the appeal against the order passed under Order 9 Rule 13 C.P.C. was not maintainable and, therefore, the impugned order is legally incorrect. He placed reliance on the decision of the apex Court in the case of P. Kiran Kumar Vs. A.S. Shadar and others, reported in 2002 (4) AWC-2709 (SC).

Sri R.B. Singhal, Senior Advocate, along with Sri C.B. Singh, Advocate appear on behalf of all the three respondents are directed to file counter affidavit within a period of three weeks. Rejoinder affidavit may be filed within two weeks thereafter.

List in the week commencing 18.7.2011.

Till the next date of listing, the operation of the order dated 20.11.2010 passed by the Additional District and Sessions Judge, Court No. 5, Meerut in Misc. Appeal No. 28 of 2006 (Union of India and others Vs. Smt. Vidyawati and others) shall remain stayed. The execution proceeding in pursuance of the decision in the suit shall also remain stayed.

Order Date :- 19.5.2011