Sanjay Misra, J. - (1.) HEARD Sri Abhishek Rai holding brief of Sri Chandan Sharma, learned Counsel for the Defendant -Appellant and Sri P.K. Jain, learned senior counsel assisted by Sri Virendra Chaubey who has appeared on behalf of the Plaintiff -Respondents.
(2.) THIS is a First Appeal From Order under Order XLIII Rule 1(t) of the Code of Civil Procedure against the order dated 29.04.2009 passed in Misc. Case No. 149 of 2006 (Binod Kumar Chaubey v. Sudama Chaubey and Ors.) by II Additional District Judge, Ballia whereby the application filed by the Defendant -Appellant under Order XLI Rule 21 of the Code of Civil Procedure for re -hearing of the appeal has been rejected. Learned Counsel for the Defendant -Appellant has submitted that a sale deed dated 09.05.1988 was executed by the Plaintiff -Respondent in favour of the Appellant namely Binod Kumar and the Respondents namely Markandey, Manoj Kumar and Hare Ram (predecessor of Respondents No. 2/1 to 2/4) and possession was handed over to them. He submits that the Plaintiff -Respondent filed a suit for cancellation of sale deed in the year 1996, but subsequently in 1997 he filed an application for withdrawal of the suit which was ultimately allowed by the order dated 16.8.2000 and the suit was dismissed as withdrawn. According to the Defendant -Appellant the Plaintiff -Respondent filed a restoration application on 19.07.2003 for restoring the suit which was allowed and the suit proceeded ex -parte which was rejected against the Plaintiff -Respondent. He states that the Plaintiff -Respondent filed Civil Appeal No. 51 of 2005 which was allowed and the suit was decreed and the sale deed dated 9.5.1988 was cancelled. According to learned Counsel for the Defendant -Appellant no notice of restoration of the suit was ever served on the Defendant -Appellant and, therefore, his application for re -hearing under Order XLI Rule 21 of the Code of Civil Procedure was maintainable and ought not to have been rejected by the impugned order.
(3.) SRI P.K. Jain, learned senior counsel has submitted that the judgment and decree in Civil Appeal No. 51 of 2005 whereby the sale deed was cancelled was taken up in Appeal No. 889 of 2006 by Markandey one of the purchasers along with the Appellant which was dismissed on 11.10.2006 whereagainst he preferred Special Leave Petition in Supreme Court which was also dismissed on 19.03.2007.;