K. P. Singh, J. - (1.) THIS writ petition is directed against the judgment of the Board of Revenue dated 15-12-1976 whereby the review petition was allowed and the suit giving rise to the review petition was abated under section 5 of the U. P. Consolidation of Holdings Act.
(2.) NECESSARY facts giving rise to the present writ petition are that the petitioners got ex-parte decree in a partition suit. That decree was sought to be set aside by opposite party no. 9 Smt. Subhadra Devi. The application for setting aside the ex-parte decree was allowed by the first appellate court on 7-1-69. During the pendency of the Second Appeal an application was moved on behalf of Smt. Subhadra Devi that she did not want to press her application for setting aside the ex-parte decree, hence the learned Member Board of Revenue dismissed the application and maintained the final decree passed in the suit through his order dated 4-3-1974. Aggrieved by the judgment of the learned Member one Badri Nath applied for review of the order dated 4-3-74 which has been allowed by the Board through its order dated 10-12-1976. Aggrieved by that order the plaintiff-petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioners has contended before me that before second appellate court the only question involved was as to whether ex-parte decree against the defendant could be set aside or not. Hence the application for setting aside the ex-parte decree could not be abated under the provisions of section 5 of the U. P. Consolidation of Holdings Act and the Board of Revenue has patently erred in allowing the review application and abating the suit under section 5 of the U. P. Consolidation of Holdings Act. The second contention raised on behalf of the petitioners is that Badri Nath had no right to file review petition and at his instance the Board of Revenue has patently erred in interfering with the earlier order of the learned Member Board of Revenue dated 4-3-1974.
(3.) THE learned counsel for the contesting opposite party has tried to support the impugned judgment of the Board of Revenue. It has not been disputed before me that on 7-1-1969 ex-parte decree against the defendant was set aside. On 11-9-1971 consolidation proceedings were started in the village in which the disputed land is situate. The question for consideration arises whether the learned Member could hear the second appeal on merits or pass final order in the appeal before him.;