Manoj Misra, J. - (1.) Heard Sri Ajay Kumar Singh for the petitioner and have perused the record.
(2.) The short question involved in this petition is whether an order of the trial court holding the suit barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 (for short UPZA & LR Act) and directing consignment of the file, without specific direction to return the plaint to the plaintiff, followed by drawing of decree, would amount to a decree amenable to a regular appeal under Section 96 of the Code of Civil Procedure, 1908 (for shot CPC).
(3.) O.S. No.228 of 2006 was instituted by plaintiff respondents against the petitioner and others for cancellation of sale deed dated 23.12.2003. Petitioner filed written statement raising various pleas. One of them was that the suit was barred by section 331 of the UPZA &LR Act and the plaint was liable to be rejected under Order 7 Rule 11 CPC. On 15.04.2010 various issues were framed. Issue no.6 was whether the suit was barred by Section 331 of the UPZA & LR Act. Issue no.8 was whether the plaint was liable to be rejected under Order 7 Rule 11 CPC. By order dated 17.02.2011 the trial court held the suit to be barred by Section 331 of the UPZA & LR Act and directed that the file shall be consigned. There was no specific order directing that the plaint shall be returned to the plaintiff though liberty was given to the plaintiff to institute a suit for declaration before court having jurisdiction. Pursuant to the order dated 17.02.2011 a decree was drawn. Against which Civil Appeal No.15 of 2011 was filed. In this appeal the petitioner raised an objection that by order dated 17.02.2011 no decree came into existence therefore appeal would not be maintainable. It was claimed that the order dated 17.02.2011 tantamounts to return of plaint for presentation before revenue court therefore first appeal from an order would lie under Order 43 Rule 1 (a) CPC. The appellate court rejected the objection by impugned order dated 04.10.2018 and held that a regular appeal under Section 96 CPC was maintainable. To support its decision the appellate court placed reliance on the definition of decree and also on circumstances such as that there was no specific order for return of plaint to the plaintiff; that the suit was held to be barred by law; that the file was consigned; and that a decree was drawn.;