07 November 2011
Ex parte order was obtained by A against B. The said oder was set aside by filing Misc Appl in the same court under order IX rule 13. In fact, despite several adjournments were taken by A on medical ground to harass B a resident of another state, A did not step in the box for Cross Examination & relied upon Affidavit. On the other hand, despite B is resident of another state he was present in the court on each & every date of hearing. A preferred another Misc Appl u/s 151 of CPC in the same court for recalling & set aside the order on the ground that no opportunity was given to A as A has not been examined in the said case. The said Misc Appl was dismissed without any objection has been filed by B on the ground that trial court has considered the case of B while setting aside ex parte decree and hence, no necessity to consider the fresh Misc Appl of A.
Now, Civil revision petition has been filed u/s 115 of CPC in the High Court - Prayer - REVISION PETITION MAY BE ALLOWED BY CALLING FOR RECORD AND SETTING ASIDE THE OREDR (LATER) PASSED BY THE COURT.
U/S 151 OF CPC - THE ABOVENAMED PETITIONER A BEGS TO STATE AS FOLLOWS -
FOR THE REASONS SWORN TO IN THE ACCOMPANYING AFFIDAVIT, THE PETITIONER PRAYS THAT THE HON'BLE COURT MAY BE PLEASED TO STAY ALL FURTHER PROCEEDINGS IN PURSUANCE OF THE ORDER PASSED ( i.e. setting aside ex parte decree), PENDING FINAL DISPOSAL OF THE ABOVE REVISION PETITION.
Ex parte decree was set aside in 2009. Fresh Misc Appl was filed by A IN 2009 which is decided in July 2011 & Civil Revision Petition is filed in Sept 2011.
I feel that
1. that present Revision Pettion against order of 2009 is barred by limitation.
2. that u/s 115 of CPC the High Court cannot interfere with the concurrent orders.
3. that the original suit is pending in the trial court, hence, Revision is not maintainable
I seek opinion & guadance of learned counsels on the subject matter. Thanks in advance.
07 November 2011
1. If it within 90 days excluding the time taken to obtain then the revision ois well within time. 2. Yes in Revision the court can but that would depend upon the merit of the case. 3.No, there is no bar.