RAJAN ROY,J. - (1.) Heard learned counsel for the parties.
(2.) This is a writ petition under Article 226 of the Constitution of India challenging the judgment and decree passed in a suit filed under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 by opposite party no. 3 and others as against Shri Prem Narain Misra and the judgment and orders passed in an appeal and revision therefrom.
(3.) The factual matrix of the case in brief is that the aforesaid suit under Section 176 was filed by the opposite parties no. 3 and others in the Court of the S.D.M., Sultanpur on 23.04.2010 and the next date was fixed as 25.05.2010, but, before the said date i.e. on 10.05.2010 one of the parties to the suit, namely, Prem Narain Misra, who was defendant therein, sold off 1/5 of his share in favour of the petitioner albeit mentioning the boundaries of the land sold, which in fact could not have been done, as, there was no partition between the co-sharers by metes and bounds. Nevertheless, the fact of the matter is that the sale deed was executed on 10.05.2010. It appears that this fact was not disclosed by Shri Prem Narain Misra in the suit proceedings and the petitioner claims he was not aware about the same. Consequently, the suit proceeded and ultimately was decided on the basis of compromise in terms of the decree dated 25.07.2011 passed therein. On coming to know of the aforesaid fact the petitioner says that he filed an application for restoration of the same, which could only be in terms of Order 9, Rule 13 which was applicable in view of Section 341 of the U.P. Zamindari Abolition and Land Reforms Act in the absence of any express exclusion as to its applicability to those proceedings. However, the said application was rejected vide order dated 26.12.2012 on the ground firstly that there was a restraint order passed on 23.04.2010 in the suit restraining the parties thereto from sale of the land in question. Secondly, the petitioner was not recorded as a tenure holder as such the application was not maintainable. Thirdly, only a defendant in the suit could have brought an application under Order 9, Rule 13 for setting-aside the alleged ex-parte decree. Various decisions have been referred in support of the aforesaid by the Court below. Against the aforesaid appeal and revision were filed which were also dismissed for the same reasons.;