- (1.) R. H. Zaidi, J. Heard learned Coun sel for the parties and also perused the record.
(2.) THIS petition is directed against the order of court, below passed under Order XVII, Rule 3, CPC. It appears that respondent No. 3 filed a suit, being suit No. 774 of 1983, in the Court of Civil Judge, Meerut. The aforesaid suit was decreed by the trial court under Order XVII, Rule 3, CPC. Thereafter, the petitioner filed an application under Order IX, Rule 13, CPC, for setting aside the ex-pane judgment and decree dated 2-2-1987. Court below dismissed the said application as not maintainable. Revision filed by the petitioner also met the same fate. Learned Counsel for the petitioner vehemently urged that the judgment and decree passed by the trial court were ex-pane and were liable to be set aside under Order IX, Rule 13, CPC and the trial Court acted illegally in exercise of its power under Order XVII, Rule 3, CPC. In support of his submissions learned Counsel for the petitioner placed reliance upon a Full Bench decision of this Court in the case of Seth Munna Lal v. Seth Jai Prakash, AIR 1970 All 257 (FB ).
(3.) I have considered the submissions made by the learned Counsel for the petitioner also perused the record. In Seth Munna Lai's case (supra), the question before the Full Bench was as to whether a decision recorded specifically under Order XVII, Rule 3 of the Code of Civil Procedure would exclude relief under the provisions contained in Order IX of the CPC irrespective of the question whether, in recording its decision under Rule 3 the Court acted rightly or wrongly. The said question was answered by the Full Bench as under: ". . . . . . . . . . . . . . it is permissible to entertain an application for restoration under Order IX, even when the Court purports to act under Order XVII, Rule 3 if the circumstances set out by the Court are such that an order under Order IX read with Order IX Rule 2 would be legally justified and the actual order passed is one which could be legally passed under Order IX read with Order XVII, Rule 2. " In view of law laid down by this Court in the case of Seth Munna Lal (supra), it will have to be seen as to whether the order passed by the trial court can be justified under Order XVII, Rule 2, CPC.;