S.P.PANDEY, J. - (1.) THIS is a revision petition under Section 333 of the UPZA and LR Act preferred against the judgment and order dated 8-8-1990 passed by the learned Additional Com­missioner, Jhansi Division, Jhansi aris­ing out of an order dated 6-1-1986 passed by the learned trial Court in the proceed­ings initiated under Section 161 of the UPZA andLR Act.
(2.) BRIEF and relevant facts of the case are that the applicant Jagdish Prasad and others moved an application under Sec­tion 161 of the UPZA and LR Act for exchange of his land with that of the Gaon Sabha concerned. The learned trial Court after completing requisite trial allowed the aforesaid application for exchange on 6-1-1986 as it was found that there was not different of more than 10% in the rental value of both the land in question. Ag­grieved by this order, an appeal was preferred. On 17-7-1989, the learned Commissioner found that the aforesaid exchange has been allowed with the con­sent of both the parties and there was no different of more than 10% of the rental .value in valuation of both the disputed land and consequently, the aforesaid ap­peal was dismissed on 17-7-1989 and the aforesaid order dated 6-1-1986 passed by the learned trial Court was confirmed. Later on a revision petition was preferred against the aforesaid order dated 17-7-1989. The then learned Member, Sri B.S. Varma dismissed the revision on 31-8-1994 and upheld the aforesaid order passed by the learned Courts below. In the mean time a restoration application was filed on 26-5-1987 by one Kripal Singh and others to set aside the order dated 6-1-1986. The learned trial Court stayed the operation of the aforesaid order dated 6-1-1986 on 27-5-1987. Later on 26-6-1987, a letter ad­dressed to the Tehsildar concerned was sent by the learned trial Court, informing him of the aforesaid stay order dated 27-5-1987. Jagdish Prasad preferred a revision-petition against the aforesaid order dated 26-6-1990. The learned Additional Commissioner dismissed the revision on 8-8-1990. Hence this second revision petition. I have heard the learned Counsel for the parties and have also perused the records on file For the revisionist it was contended that the aforesaid order dated 6-1-1986 has been maintained upto the Board of Revenue vide its order dated 31-8-1994 and the same has become final as it has not been challenged before the Hon'ble High Court and the aforesaid order dated 6-1-1986 has merged with the order of the superior Courts; that in view of the Order IX Rule 13 CPC and its ex­planation, the restoration application is not maintainable against the order dated 6-1-1986 ; that the order dated 31-8-94 is liable to be maintained as the decree passed by the Court of first instance merged with the decree of the appellate Court and it ceases to exist ; that the learned trial Court cannot alter or amend it as the aforesaid order dated 6-1-1986 has merged with the orders of the superior Courts ; that when any matter has been disposed of finally at the stage of the Board of Revenue, again the same matter cannot be agitated before the learned trial Court and in these circumstances, the aforesaid orders dated 26-6-1987, 27-5-1987 and 8-8-1990 passed by the learned Courts below be set aside and the order dated 31-8-1994 passed by the then learned Member, Sri B.S. Varma be or­dered to be maintained; that in a decision reported in 1982 AWC 681, the Hon'ble Supreme Court has held that if any appeal against an ex pane decree has been dis­posed of on any ground other than the ground that the appellation has withdrawn the appeal, no application for setting aside the ex pane decree under Order IX Rule 13 CPC will be entertained. In this respect in support of his conten­tions he has also relied upon the case laws reported in 1931 ALJR 945 (HC), AIR 1948 All. 213 (DB). In reply the learned DGC (R) submitted that in view of the case laws referred to above by the learned Counsel for the revisionist this revision petition be disposed of as per the provisions of law.
(3.) I have closely and carefully ex­amined the submissions made by the learned Counsel for the parties and the relevant records on file. From the bare perusal of the record, it is manifestly clear that through an order dated 6-1-1986, the learned trial Court has allowed the ex­change application under Section 161 of the UPZA and LR Act. On appeal the learned Commissioner also upheld the aforesaid order dated 6-1-1986 and dis­missed the appeal on 17-7-1989. On a revision the then learned Member, Sri B.S. Varma has confirmed the aforesaid orders passed by the learned Courts below through his order dated 31-8-1994. On a close scrutiny of the records, it is crystal clear that upon a restoration application, the learned trial Court stayed the opera­tion of the aforesaid order dated 6-1-1986 through its order dated 26-6-1987 while the aforesaid order dated 6-1-1986 was confirmed on appeal by the learned Com­missioner on 17-7-1989. It is worthwhile to mention here that the aforesaid order dated 17-7-1989 clearly indicates that the first appeal was filed in the year 1986-87 against the aforesaid order dated 6-1-1986 passed by the learned trial Court while the aforesaid stay order was passed by the learned trial Court on the restoration ap­plication on 27-5-1987. As per the dictum of law enunciated by the Hon'ble Supreme Court in a decision reported in 1982 AWC 681 and in the decisions reported in 1931 ALJR 945 and AIR 1948 Alld. 213 (DB) by the Hon'ble Allahabad High Court, the aforesaid restoration application was not maintainable and as such the aforesaid orders dated 27-5-1987 and 26-6-1987 are not sustainable in law.;