A.N. Dikshita, J. - (1.) BY means of this petition Under Article 226 of the Constitution of India the Petitioners have prayed for issuing a writ of certiorari for quashing the Order dated 09.07.1982 (annexure 8 to the petition) passed by the 3rd Additional District Judge, Moradabad, Respondent No. 1, allowing the appeal and setting aside the Order dated 20.05.1977 passed by the Civil Judge, Moradabad, Respondent No. 2.
(2.) IN brief the facts are: Smt. Batool Khatoon, predecessor -in -interest of Respondents Nos. 3 and 4 filed a suit for partition against Smt. Kulsum Fatma, the mother of Petitioners Nos. 1 to 4 and wife of Petitioner No. 5. On the suit being decreed for half share a preliminary decree was ordered to be prepared. During the proceedings for the preparation of the final decree a report was submitted by the Amin after assessing the valuation of the property against which objections were filed by the Defendants. The report submitted by the Amin was set aside and he was directed to submit an additional report regarding the estimate of the valuation of the proposed quarras by 30.04.1977. After notice to the parties, the Amin neither directed the Plaintiff to take necessary steps but at the time of his visit at the spot the Plaintiff decree -holder aid not turn up nor deposited the necessary charges. The Amin submitted a report to the said effect, Chi 20.05.1977 when the case was fixed none appeared for the Plaintiff decree -holder to press the application foe drawing up proceedings for preparation of final decree which was rejected for non -appearance. An application for restoration was filed on 02.07.1977 stating that the Plaintiff was under the impression that the case was fixed on 20 -06 -l977 and as such she could not attend the court on 20.05.1977. Objections against such an application were filed on behalf of the Petitioners. The application was dismissed on 13.05.977 for default of the Plaintiff decree -holder. The Plaintiff decree -holder filed another application for the recall of the order dismissing the application for restoration. This application was allowed and the order dismissing the restoration application was recalled on 29.04.1978. However, on account of non -impleadment of the necessary parties the application was again rejected on 05.10.1989. A significant fact was lost sight of that later on the necessary parties were impleaded. The Plaintiff decree -holder preferred an appeal to the court of District Judge, Moradabad, which was transferred to the court of 3rd Additional District Judge, Moradabad, for disposal according to law. The Respondent No. 1 vide his judgment and Order dated 20.05.1977 was set aside and the proceedings for preparation of final decree were restored. The Petitioners have filed the instant petition Under Article 226 of the Constitution of India for issuing a writ in the nature of certiorari for quashing the judgment and Order dated 09.07.l982 passed by Respondent No. 1.
(3.) COUNSEL for the parties has been heard. Learned Counsel for the Petitioners has urged that the appeal preferred by the contesting Respondents against the Order dated 20.05.1977 was not maintainable and as such Respondent No. 1 erred in allowing it and restoring the proceedings for preparation of lineal decree. 1 does not find any merit in the submission. it was on 20.05.1977 that Respondent No. 2 passed the order dismissing the application for preparation of final decree in default on account of the absence of parties. On 20.05.1977 the report of the Amin was received. The earlier reports filed by the Amin vide paper No. 205G was set aside. It is no where emerging that 20.05.1977 was the date fixed for hearing. After the passing of the impugned order dated 20.05.1977 the Plaintiff decree -holder had preferred an application Under Order 9 Rule read with Section 151 Code of Civil Procedure This implication was within time. On the dismissal of this application for setting aside the order dated 20.05.1977 and for the restoration of the proceedings for preparation of the final decree to its number the appeal was preferred. There is no dispute between the parties that such an application Under Order 9 mile 9 Code of Civil Procedure was maintainable. However, when this application was dismissed on 5 -10 -1979 the appeal was preferred. counsel for the Petitioners has submitted that this appeal was not maintainable. under 43 Rule 1 of the Code of Civil Procedure provides for tiling of an appealing respect of an order under Order 9 Rule 9C Po rejecting an application or an order to set aside the dismissal of the suit. In intent by the impugned order dated 20.01.1977 the suit was dismissed. Upon the dismissal to the application under Order 9 Rule 9 Code of Civil Procedure appealing provided Under Order 3 Code of Civil Procedure was maintainable. It has not to be lost sigtit of that the proceedings or preparation are in continuation of the suit. Learned Counsel or the Petitioners relied upon Smt Ganga Bai v. Vijai Kumar, AIR 1974 SC 126. This case does not support the contention of the learned Counsel for the petitioners. In the said case it was held that no appeal would amending for the simple reason that the Code does not provide for any such appeal, n the instant case as the proceedings for preparation of final decree, which were in continuation and furtherance of the suit, were dismissed the Plaintiff decree -holder had every right to file an application Under Order 9 Rule 9 Code of Civil Procedure restored and upon the dismissal of such an application, an appeal Under Order 43 Rule 1 Code of Civil Procedure.;