- (1.) D. K. Seth, J. Ex-parte decree dated 17-2-1995 passed in original suit No. 61 of 1993 was sought to be set aside by means of an application under Order IX Rule 13 of the Civil Procedure filed sometimes in April 1995. The said application was registered as Misc. Case No. 16 of 1995 and was allowed by an order dated 17-6- 1995. In the said order it was stipulated that the ex pane decree would stand set aside on payment of rupees one thousand as costs. The next date was fixed on 18th July 1995 for issues. On 18-7-1995 an application was made for granting one month's time to file written statement and for payment of costs. The said application was rejected by an order dated 18th July, 1995. On 17-8-1995 the defen dant- petitioner filed an application for recalling the order dated 18-7-1995. The said application was registered as Misc. Case No. 27 of 1995. By an order dated 5th June, 1996 the said Misc. Case No. 27 of 1995 was dismissed. The present revision application has been filed against the said order.
(2.) AN interim order was passed on the said revision application on 3rd July, 1996. The said order has been sought to be va cated by means of present application filed on 31st July, 1996. The learned counsel for the plaintiff opposite party Sri Rajiv Joshi vehemently pressed the said application. Sri Shashi Nandan, learned counsel for the defendant-petitioner opposed the same with equal vehemence. In fact both of them had ad dressed the court on the merit of the Revision application itself ia order to justify their respective cas namely in support and against the interim order so granted. While the petitioner was justifying the interim order the opposite party was justifying its vacation. Both of them had based their argu ment on the merit of the case. The decision on the application for vacating the interim order would virtually require a decision on merit itself. Both the counsel have agreed to the disposal of the Revision application since both of them have already advanced their argument on merit as well. Accordingly the Revision ap plication is being disposed of along with the application for vacating the stay.
(3.) THE learned counsel for the Plaintiff opposite-party contends that the order dated 17-6-1995 being conditional one stipulating particular time on account of non-compliance thereof, nothing remains to be decided by the court and the decree had never been set aside THErefore, there was no scope for extension of time. Second ly, he contends that the order dated 18-7-1995 was subject to revisions and the same was not challenged in Revision. THE ap plication for review, therefore, is not main tainable. He thirdly contends that the present revision application can not be maintained only against the order dated 5-6-1996 unless the order dated 18-7-1995 is challenged. He next contends that the con duct of the defendant-petitioner appears to lack deligence. Inasmuch as though he could have challenged the order dated 18th July, 1995 instead he had challenged the only order dated 5-6-1996 to delay the process. His last contention was that even on merit no ground has been made out for reviewing the order dated 18-7-1995. In as much as the defendant petitioner himself has pleaded contradictory case in the ap plication for review and in the case made out in the application filed on 18th July, 1995. The learned counsel for the defen dant petitioner on the other hand con tended that in view of Section 148 of the Code of Civil Procedure the Court was em powered to extend time even if it had ex pired. In the present case the order dated 18th July, 1995 does not disclose as to on which ground it was so rejected. Therefore, the application for review was filed. He also relied on serveral decisions in support of his contention. He pointed out that sufficient grounds were made out for recalling of the order dated 18-7-1995. While exercising his jurisdiction the learned court below had acted wholly illegally and with material ir regularity and has thereby failed to exercise the jurisdiction vested in it in the facts and circumstances of the case.;