- (1.) In both the above writ petitions parties are common and both petitions are directed against the identical orders dated 26.4.2012 passed by the Additional District Judge, Jhansi dismissing the two similar revisions of the petitioners. Petitioners instituted a suit for cancellation of the sale deed. In the suit defendant respondents appeared and filed written statement but ultimately the suit was decreed ex parte. The defendant respondents then filed two separate applications both under Order 9 Rule 13 CPC for setting aside the ex parte decree. The said applications were allowed by the trial Court. The two revisions against the above order preferred by the petitioners have been dismissed by the impugned orders as not main tamable. Thus, these writ petitions.
(2.) I have heard Sri Arvind Srivastava and Sri M.K. Gupta, learned counsel for the parties. They have agreed for final disposal of both the revisions at the outset as the point involved is purely legal in nature as to the maintainability of the revisions and no factual dispute is involved. The argument of learned counsel for the petitioners is that the revisions were maintainable in law and therefore the Revisional Court manifestly erred in dismissing the same as not maintainable. The revisions were directed against the order of the trial Court allowing the application under Order 9 Rule 13 CPC and for setting aside of the ex parte decree. The order allowing an application under Order 9 Rule 13 CPC is not appealable. It is only rejection of such application that appeal has been provided under Order 43 Rule 1(C) CPC.
(3.) Full Bench of this Court in Ram Sarup v. Gaya Prasad, 1925 AIR(All) 610 held that an order setting aside ex parte decree not being appealable is revisable, if the conditions laid down under Section 115 CPC are satisfied. It further says that proceedings under Order 9 Rule 13 CPC were a 'case' within the meaning of Section 115 CPC and any decision thereon amounts to deciding the 'case' and is not a mere interlocutory order.;