Posted On 07 November 2011 at 20:29
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.
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