Anjani Kumar - (1.) -The present writ petition arises out of proceedings in a suit. The facts as stated in the writ petition are that the suit was decreed ex parte in the month of July, 1990 and an application for restoration and recall of the ex parte decree under Order IX, Rule 13 of the Code of Civil Procedure, 1908, hereinafter referred to as "Code" along with an application under Section 5 of the Limitation Act for condonation of delay in filing the said application under Order IX, Rule 13 of the Code was filed.
(2.) THE trial court after hearing the parties allowed the application under Section 5 of the Limitation Act, condoned the delay in filing the application under Order IX, Rule 13 of the Code and having found sufficient cause for setting aside the ex parte decree, allowed the application under Order IX, Rule 13 of the Code vide its order dated 11.7.1995. It is this order passed by the trial court which is challenged by the plaintiffs-respondents herein before the revisional court. THE revisional court allowed the revision, set aside the order passed by the trial court by its order dated 8.11.1996 impugned in the present writ petition. Learned counsel for the petitioner Sri S. P. Goswami, submitted that the provisions of Section 115 of the Code has been amended by the Allahabad High Court. The amended provision is reproduced below : "Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where : (i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings ; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Explanation.-In this section, the expression 'any case which has been decided' includes any order deciding an issue, in the course of a suit or other proceeding." The contention of Sri Goswami that the revisional court before setting aside the order passed by the trial court, condoning the delay and setting aside the ex parte decree has to record a finding as contemplated under the provisions of Section 115 of the Code as amended by Allahabad High Court, particularly the provisions (a) and (b). Sri Goswami has taken the Court to the observations made by the revisional court in this regard. Confronted with this arguments, Sri Manish Kumar Nigam, learned counsel appearing for the respondents could not point out that the finding as contemplated under the proviso to Section 115 of the Code of the Allahabad High Court amended is there in the impugned order. However, Sri Nigam relied upon sub-section (ii) of Section 115 of the Code as amended by the Allahabad High Court which reads as under : "(ii) the order, if allowed to stay, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
(3.) THE contention of Sri Nigam even if accepted will not cure the defect in the revisional court's order. In this view of the matter, the order passed by the revisional court deserves to be set aside and is hereby dismissed. THE writ petition is allowed and the order of the revisional court is set aside. THE result is that the ex parte decree passed against the petitioner stands recalled. THE trial court is directed to decide the suit expeditiously preferably within a period of six months, if possible. THE parties shall appear before the trial court on 23rd September, 2002, along with the certified copy of this order.;