1. By this petition, the petitioner has challenged an order of learned ADJ dated 25th September, 2007 allowing an appeal against order dated 23rd February, 2007 of the learned Civil Judge

2. The brief facts relevant for disposing of this petition are that an ex parte decree was passed by the learned Civil Judge in respect of possession of property no. F-40/47, Model Town, Delhi on 6th March, 1990. While execution of this decree was pending, an application was filed on 25th January, 1994 under Order 9 Rule 13 CPC by one Sukhbir Singh, Advocate claiming to be General Power of Attorney of Satnam Kaur, JD. This application was dismissed by the learned Civil Judge vide his order dated 20th March, 2004 Against this order, the Attorney preferred an appeal and along with the appeal an application under Order 18 Rule 17 CPC was filed to produce certain additional documents. The application under Order 18 Rule 17 CPC was allowed by learned ADJ vide his order dated 2nd December, 2004 permitting exhibiting of General Power of Attorney, Medical Certificates, summons, newspaper, plaint, application, etc., subject to costs of Rs.10,000/-. The learned ADJ remanded the matter back for deciding the matter afresh after allowing the applicants witness, Sukhbir Singh, to exhibit the aforesaid documents, subject to objections.

.3. After the matter was remanded back further statement of Sukhbir Singh, Advocate was recorded and the Trial Court again dismissed the application under Order 9 Rule 13 CPC vide its order dated 23.2.2007. During this time, Satnam Kaur had died. An appeal

.against order of Civil Judge was preferred by Praveen Singh, LR of Satnam Kaur. This appeal has been allowed by the impugned order.

4. Advocate, Mr. Sukhbir Singh who moved application under Order 9 Rule 13 CPC on 24.1.1994 for setting aside the ex parte decree, claimed to be the brother-in-law of Satnam Kaur. He appeared in the Court as a witness in support of this application. In his testimony, he stated that on 24th January, 1994 he received a telephonic call from an unknown person informing him about a matter going on in the Court against Satnam Kaur for possession of the shop. The anonymous caller also told him the name of the Court. The Trial Court has asked him to reveal the name of the caller but he refused to reveal the name of the caller and told that he was a well-wisher of him. He did not say that he was not aware of his name. He further deposed Satnam Kaur told me that she is hearing about the case for first time and is not in the knowledge of any suit like this. She further instructed me, on engaging me as her counsel, to move an application under Order 9 Rule 13 CPC. She further told me she has never been served with summons of any such case from the Court regarding my shop at Model Town. No notice of any kind from any counsel has even been received by her. Satnam Kaur never used to receive any documents or paper from any one without informing me or without getting my permission and always used to be in my knowledge.

5. It is evident that the entire testimony of this witness is hearsay and is not admissible in evidence. Satnam Kaur was very much alive at that time when he gave the testimony and the testimony of this witness in respect of knowledge of Satnam Kaur was inadmissible. He claimed to be Attorney and Advocate, both of Satnam Kaur but did not file his Power of Attorney in Court. It is only when the Civil Judge dismissed the application under Order 9 Rule 13 CPC inter alia on the ground that Power of Attorney of Satnam Kaur filed in the case was neither proved nor it was a valid Power of Attorney and only a photo copy of General Power of Attorney was produced on record that the Advocate filed an application under Order 18 Rule 17 CPC before the Appellate Court to bring Power of Attorney on record. The Power of Attorney placed on record by this witness is dated 3rd March, 1999.

6. Order 18 Rule 17 CPC is not applicable during pendency of an appeal.

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