- (1.) B. K. Rathi, J. An order was passed on 29-2-2000 (Annexure N. 9 of the stay application) by the District Judge, Varanasi in Case No. 155 of 2000 appoint ing the applicant Vinay Kumar Chowdhary as Managing Trustee of the Trush Lachchi Ram Dharamshala, Varanasi in accordance to the scheme, dated 13-8-1938 prepared in O. S. No. 7/27. The opposite party on 29-5-2000 moved an application under Order IX, Rule 13 C. P. C. to recall the order with an applica tion for condonation of delay in filing the application. The application was opposed on the ground that the opposite party was not party in the proceedings and, there fore, he has no right to apply for the recall of the order under Order IX, Rule 13 CPC. The application for condonation of delay was also opposed. However, by order dated 21-8-2000, the learned District Judge, Varanasi has allowed the applica tion for condonation of delay and also the application for recall of the order dated 29-2-2000 passed by him and has sent the matter for fresh decision to the IVth Addi tional District Judge, Varanasi alongwith other connected matters. Aggrieved by it, the present revision has been preferred.
(2.) I have heard Sri Ajit Kumar, learned counsel for the revisionists and Sri AK. Srivastava, learned cousnel for the opposite party and have gone through the record. The first argument of the learned counsel for the revisionist is that the ap plication for stay of the order was filed and the District Judge, Varanasi on 30-5-2000 (Annexure No. 6 to the affidavit) ordered that the stay shall be considered after dis posal of application under Section 5 of the Limitation Act. That inspite of that order the learned District Judge has passed a composite order allowing the application under Section of the Limitation Act and also allowing the application for recall of the order. The composite order is bad in law. h is contended that after condonation of delay opportunity should have been given for consideration of application for recalling the order. The learned counsel for the revisionist in support of the argu ment has referred to the decision of the Apex Court in State of M. P. and another v. Pradeep Kumar and another, 2001 (1) JCLR 103 (SC); (2000) 7 S. C. C. , 372. It was observed in the case: "the object of enacting Rule 3-A in Order XLI of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application ex plaining the delay. Second is, to communicate to the respondent a message that it may not be ( necessary for him to get ready to meet the) grounds taken up in the memorandum of ap peal because the Court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the rule that it is intended to operate as unremidiable or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. " I have considered the arguments, but disagree with the same. The above observation is based on Rule 3-A in order 41 C. P. C. which applies to the appeals. This provisions cannot be applied to-miscellaneous application. Rule 3-A of Order XLI, CPC does not apply to the miscellaneous applications.
(3.) FROM the order passed by the Dis trict Judge, Varanasi it appears that he has heard arguments on merits as well on ap plication for condonation of delay and passed a composite order. There is no il legality in the same. Another reason for not interfering in the order is that application for con donation of delay in this case was only a formality, which was not at all required. The opposite party who moved the ap plication was not a party to the proceed ings and he moved the application for recalling the order when he came to know of the order. Therefore, he was no required to explain the delay. The only requirement was to show as to when he came to know the order. Thereafter, the main question for consideration was regarding the ground for recalling the order. The first argument of the learned counsel for the revisionist therefore, cannot be accepted.;