ATTAU RAHMAN MASOODI, J. - (1.) Heard Sri Adnan Ahmad, learned counsel for the petitioner and Sri Akash Dixit, alongwith Sri Bajhul Qamar Siddiqui, learned counsel for opposite party no. 2 and 3. The opposite party no. 4 gave up his case before the appellate court below, therefore, issuance of notice to opposite party no. 4 is dispensed with. Maintainability
(2.) At the very outset, learned counsel for the opposite parties no. 2 and 3 vehemently opposed the maintainability of this petition under Article 227 of the Constitution of India on the ground that a judgement rendered on 18.8.2018 by the Additional District Judge (III), Unnao in First Appeal No. 5/2011 filed under section 96 of Code of Civil Procedure (CPC) can only be assailed by way of a second appeal before this Court, hence a petition under Article 227 of the Constitution of India would not lie.
(3.) To repel the preliminary objection raised by opposite parties, Sri Adnan Ahmad, learned counsel for the petitioner has argued that Regular First Appeal No. 5/2011 had arisen out of the order dated 21.12.2010/14.1.2011 passed by the Civil Judge, Senior Division, Unnao on an application filed under Section 151 read with Order 23, Rule 3 CPC to set aside a compromise decree rendered in First Appeal No. 13/1976 on 23.12.1976. This application was decided by learned Civil Judge, Senior Division in exercise of delegated powers on behalf of the District Judge, which not being a decree, was an order passed by the District Judge himself, hence the First Appeal against such an order was not maintainable. The objection raised by the petitioner having remained unconsidered, would thus impinge upon the very jurisdiction of the learned District Judge who has passed the impugned judgement dated 18.8.2018, therefore, this petition is maintainable within the scope of Article 227 of the Constitution of India.;