A.N.Varma, J. - (1.) THIS writ petition is directed against concurrent orders passed by the Courts below, recalling earlier order passed by the small cause Court on 15 -1 -1982, dismissing an application filed by one Abdul Rahim, father of Respondents Nos. 3 and 4 for setting aside an ex -parte decree passed in favour of the Petitioner on 13 -7 -1981 by the said Court as having been abated under Rule 25 of the rules framed under the U.P. Act No. 13 of 1972.
(2.) IT appears that a suit for ejectment of the tenant against the said Abdul Rahim was filed. The said suit was decreed ex -parte on 13 -7 -1981. Thereupon he filed an application for setting aside of the ex -parte decree. While that was pending Abdul Rahim died on 5 -12 -1981. On 11 -12 -1981 the Petitioner informed the Court that Abdul Rahim had died. 15 -1 -1982 had earlier been fixed for the disposal of the application filed by Abdul Rahim. On that date the Court passed the following order: None for the applicant who is reported to have died on 5 -12 -1981. Under Rule 25(1) of U.P. Urban Buildings Rules 1972 this application is dismissed as abated. Sd/IllegibleJ.S.C.C. The same day the Respondents Nos. 3 and 4, who are respectively son and widow of Abdul Rahim, made an application with a prayer that the said order be recalled. They asserted that the suit could not be declared to have abated under Rule 25(i) as it was governed by the Code of Civil Procedure which provided a period of 90 days for making a substitution application.
(3.) THIS application was contested by the Petitioner but was allowed by the learned Judge Small Cause Court by an order dated 6 -2 -1982. It was held that the suit was wrongly dismissed under Rule 25(i). The suit was governed by the Code of Civil Procedure and consequently the period prescribed for making a substitution application under that Code would govern the matter.;