MAHESH CHANDRA TRIPATHI,J. - (1.) Heard Navneet Kumar Shukla, learned counsel for the petitioner and Shri Sudhanshu Pandey, Advocate holding brief of Ashutosh Mishra, learned counsel for respondent-plaintiff.
(2.) Record in question reflects that the respondent-plaintiff had instituted a suit against Hare Ram Tiwari (grandfather of petitioner) for execution of sale deed in their favour in respect of plot no.305 area 2.80 acre situated at village Balihar Pargana, Post and District Ballia; plot no.519 area 98 decimal and plot no.532 area 94 decimal situated at village Dighar Pargana, Post and District Ballia, which was numbered as Original Suit No.28 of 1996 (Om Prakash Tiwari and others v. Hare Ram Tiwari) . Record in question further reveal that in the said suit proceeding, Hare Ram Tiwari died on 12.02.2006 and the father of the present petitioner was substituted in place of Hare Ram Tiwari and he was also died on 29.03.2008. It has also been claimed that petitioner-defendant is the only claimant of property in question and in between the brother of petitioner namely Anil Tiwari has also died on 22.09.2012. In the said suit, the name of petitioner was also substituted and he has also filed his counter claim. Finally, it is claimed that the aforesaid suit in question was decreed on 15.09.2012 ex-parte without serving the notice upon the petitioner on his address at West Bengal and only when he has visited his native village on 18.09.2015, then he got knowledge about the ex parte decree dated 15.09.2012. Being aggrieved with the same, he has moved recall application on 19.09.2015 under Order 9 Rule 13 and section 151 CPC for recalling ex-parte decree dated 15.09.2012. Against the said application, the plaintiff-respondent has also filed an objection on 04.02.2016 and finally, the aforesaid application was allowed by Civil Judge, Senior Division/ACJM II Ballia vide order dated 23.02.2016 with a cost of Rs. 500/-. Aggrieved with the said order, the plaintiff-respondent had also preferred the Revision before the Special Judge/Additional District Judge, Ballia which was numbered as Revision no.29/2016 (Om Prakash Tiwari and others v. Sunil Kumar Tiwari) and the same has been allowed by the Revisional Court on 03.10.2016 and aggrieved with the same, the petitioner preferred the present Writ Petition under Article 227 Constitution of India.
(3.) Learned counsel for the petitioner-respondent precisely submits that the entire decree was ex parte and at no point of time, he has any knowledge about the same and after receiving the aforesaid decree, he has proceeded to move an application under Order 9 Rule 13 and section 151 CPC which was also allowed by the Trial Court and the said decree was recalled with the cost of Rs. 500/- vide order dated 15.09.2012 and as such, there is no infirmity or illegality in the said order. Thereafter the respondent-plaintiff has also filed revision, which was arbitrarily allowed by the Revisional Court on 03.10.2016 except the fact that the Trial Court has recalled the said decree after appreciating each and every aspect of the matter and the said decree was passed ex-parte to the petitioner and under the present facts and circumstances, the said order cannot sustain and this Court should come to the rescue and reprieve of the petitioner.;