Anjani Kumar, J. - (1.) -The petitioners, who were opposite parties, aggrieved by an order passed by the revisional court approached this Court by means of present writ petition under Article 226 of the Constitution of India, whereby the revisional court has allowed the revision filed by respondents.
(2.) FROM the narration of fact in the writ petition, it reveals that the petitioners had filed a suit being Suit No. 836 of 1991, which was decreed vide order dated 11th November, 1992. Aggrieved thereby, the respondents filed an application under Section 151 of the Code of Civil Procedure for setting aside the decree passed in the suit, referred to above. The petitioners filed their objection in the aforesaid application filed on behalf of respondents. The trial court rejected the application under Section 151 of the Code of Civil Procedure filed by the respondents vide its order dated 20th November, 1998. Thereafter the respondents filed revision before the revisional court. The revisional court vide its order impugned in the present writ petition while allowing the revision has set aside the order passed by the trial court and allowed the application filed by the respondents setting aside the ex-parte decree passed in Suit No. 836 of 1991 in exercise of power under Section 115 of the Code of Civil Procedure. Learned counsel appearing on behalf of the petitioners submitted that in the facts and circumstances of the case when the suit has been decreed, it was not open to the revisional court to exercise its power under Section 115 of the Code of Civil Procedure to set aside the order passed by the trial court and allowing the application, which was rejected by the trial court, as the revisionists/respondents should have challenged the decree, either by way of regular appeal as provided under Section 96 of the Code of Civil Procedure, or if the decree was ex-parte by filing an application under Order IX, Rule 13 of the Code of Civil Procedure. It is further submitted that in view of the U. P. amendment to Section 115 of the Code of Civil Procedure, the revisional court has committed the material irregularity in exercising his jurisdiction under Section 115 of the Code of Civil Procedure without reverting the findings recorded by the trial court that either of the conditions, reproduced below of second proviso in the U. P. amendment to Section 115 of the Code of Civil Procedure are attracted and therefore, the order passed by the revisional court is liable to be set aside. The provision of Section 115 of the Code of Civil Procedure as amended in the U. P. is reproduced below : "Section 115 of Code of Civil Procedure, Second Proviso.-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 proceeding ; 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." Learned counsel appearing on behalf of the respondents contended that the application under Section 151 of the Code of Civil Procedure was maintainable and the trial court has erred in rejecting the same, therefore, the revisional court has rightly exercised his jurisdiction. The contention of learned counsel for the respondents cannot be accepted in view of law laid down by this Court Debi Das v. State of U. P. and others, 2003 (3) AWC 1921, and in view of second proviso to Section 115 of the Code of Civil Procedure, as amended in the State of U. P., referred to above and the writ petition deserves to be allowed.
(3.) IN view of what has been stated above the writ petition succeeds and is allowed. The order passed by the revisional court dated 23rd January, 2004 (Annexure-5 to the writ petition), is quashed.;