SARLA DEVI Vs. DISTRICT JUDGE
HIGH COURT OF UTTARAKHAND
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Brahma Singh Verma, J. -
(1.) BY means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the judgment and order dated 17.10.2005 and order dated 12.10.2001 passed by District Judge, Rudraprayag respondent No. 1.
(2.) BRIEF facts of the case are that respondent No. 3 filed misc. appeal under Order 43 Rule 1(r) of C.P.C. being misc. appeal No. 2 of 2001 before the District Judge challenging the order dated 31.3.2001 passed by the trial court by which the application for granting ad -interim injunction was allowed and parties were directed to maintain status quo. It is alleged that during the pendency of appeal, both the parties entered into compromise on 12.10.2001 and an affidavit to this effect was filed before the appellate court which was also verified by counsel for the parties. On the same day, on the basis of compromise, the appeal as well as the suit was decided. Aggrieved by the said order dated 12.10.2001, the petitioner moved an application u/s. 151 of C.P.C. to recall the order on the grounds mentioned in the application. Before the District Judge, the petitioner alleged that he has not signed on the said compromise. Her husband has put his signature on the compromise under some pressure. Learned District did not find favour to the petitioner and dismissed the application by a detailed order dated 17.10.2005. Feeling aggrieved, this writ petition has been filed by the petitioner before this Court. Learned senior counsel appearing for petitioner has contended that apart from other grounds the appellate court while exercising jurisdiction under Order 43 Rule 1(r) in misc. appeal cannot pass an order to decide the suit finally. In support of his contention, learned senior counsel has placed reliance upon the following judgments of the Hon'ble Allahabad High Court: - -
"i) Kailash Nath Singh v. District Judge, Mirzapur and others, : 1993 (1) ARC 165.
ii) Rajendra Kumar Bajpai v. Shailesh Kumar Shukla and another, : 2013 (2) ARC 633."
(3.) IN reply thereto, learned counsel appearing for private respondent has submitted that in view of Section 107(2) and Order 43 sub -rule 2 of C.P.C., the appellate court while hearing the misc. appeal holds same power as that of a regular court. There is no distinction as far as C.P.C. is concerned.;
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