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Smt. Kamlesh Rani And Another v. Civil Judge, Ghaziabad &Others - WRIT - C No. 12003 of 1991 [2006] RD-AH 1913 (24 January 2006)


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Court no.31

Civil Misc. Writ Petition no. 12003 of 1991

Smt. Kamlesh Rani and another vs. Civil Judge, Ghazibad and ors.


Hon'ble Bharati Sapru, J.

On 20.12.2005, this court had passed order that no prayer for adjournment shall  be entertained by this Court, if made by the learned counsel for the petitioners.

Today the case has been called out in the revised list. Learned counsel for the petitioner is present through his junior Sri S.S. Shukla. Learned counsel for the respondent is present.

A stay order was granted in this matter on 22.4.1991. A stay vacating application and counter affidavit was filed by the respondents on 29.7.1991. The stay vacating application had not been heard so far.

Learned counsel for the respondents has argued that the order passed by the court below on 26.2.1991 is correct and requires no interference from this Court under Article 226 of the Constitution of India because against the order dated 26.2.1991 which was passed on an application made by the petitioner under section 151 C.P.C., the court below has rightly come to the conclusion that the order dated 26.2.1991 was an appealable order under the provisions of Order XLIII Rule 1 (a) C.P.C.  

The facts of the case are that the suit which was filed which was ultimately compromised on 20.11.1988 and a decree was passed in pursuance of the compromise made between the parties. Petitioners however filed an application under section 151 C.P.C. on 20.1.1990 saying that the compromise had been made in their absence and they were not parties to the said compromise. The present respondents had also filed objections.

The court below took a view that if any of the parties wished to get the compromise decree set aside, the proper remedy under the C.P.C. would be an appeal under the Order XLIII Rule 1 (a) C.P.C itself and not on application under section 151 C.P.C.

Learned counsel appearing on behalf of the petitioners is present in Court has made no submissions.

After taking into consideration the entire facts and circumstances of the case, I am of the opinion that the order passed by the court below is correct. Code provides complete remedy to the petitioners by way of filing an appeal under Order XLIII Rule 1 (a) and the application filed by the petitioners under section 151 C.P.C. was clearly misconceived. The present writ petition is wholly misconceived. It was open to the petitioners to take recourse to the alternative remedy provided to him under the C.P.C. The present writ petition is therefore misconceived and is not maintainable. It is devoid of merits and deserves to be dismissed.

The writ petition is dismissed. Stay order granted earlier is discharged but there will be no order as to costs.

Dated  24.1.2006



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