V.N.Khare - (1.) -By means of the present petition under Article 226 of the Constitution of India, the petitioner has come up before this court against the order dated 8-7-1985 passed by the Additional District Judge, Gyanpur Varanasi.
(2.) THE petitioner filed a suit for specific performance of contract for sale of a bouse situated on plot no. 928/M, Gopiganj, Varanasi. THE suit was registtred as suit no. 358 of 1978. THE respondent no. 2 contested the said suit. Ultimately, the learned Munsif, Gyanpur by his judgment and order dated 10-5-1982 decreed the suit under Order 17 rule 3 of the Civil Procedure Code. Respondent no. 2 on (0-5-1982 filed an application before the Munsif, Gyanpur for setting aside the exparte decree. The said application was rejected by the learned Munsif on 10-5-1982. On 28-5-1982 respondent no. 2 filed an application under order 9 rule 13, Civil Procedure Code, for setting aside the exparte decree dated 10-5-1982. The petitioner filed objection to this application. While this application was pending, respondent no. 2 filed a Misc. appeal before the Addl District Judge, Varanasi purporting to be under order 43, rule 1 (d) of the Civil Procedure Code. This appeal was numbered as Misc. Appeal no. 51 of 1982. On 16-1-1984 respondent no. 2 filed an application before the learned District Judge for permitting him to amend the title of memo of the appeal by inserting order 41 rule 1, CPC. The petitioner filed objection to the said amendment application moved by respondent no. 2.
(3.) THE Additional District Judge by his order dated 25-2-1984 rejected the said amendment application of respondent no. 2 on the ground that by amending the title of the appeal respondent no. 2 wants to convert the Misc. appeal into a regular appeal which cannot be done because of non payment of the court fee as well as the period of limitation for filing a regular appeal has already expired. Subsequently, respondent no. 2 moved another application praying that he may be granted time to deposit the balance court tee and the misc. appeal may be converted into that of a regular appeal. This application was opposed by the petitioner. The Additional District Judge by means of the impugned order dated 8-7-1985 allowed this application and directed respondent no. 2 to pay proper court fee on the suit as required in a regular civil appeal within a week from the date of the order and on payment of proper court fee the Misc. appeal shall be treated as a regular civil appeal. The present writ petition is directed against this order.;