Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Manish Goel alongwith Sri Kamlesh Kumar Mishra, for the petitioner.

2. The writ petition has been filed against the order of Settlement Officer Consolidation dated 1.2.2014, rejecting the application of the petitioner for postponing hearing of the appeal during pendency of the revision filed by the petitioner against the order dated 31.12.2013 by which the application of the petitioner for deciding the delay condonation application and preliminary objection relating to maintainability of the appeal, before hearing arguments on merit in the appeal has been rejected and for issue of writ of prohibition restraining Settlement Officer Consolidation from deciding the appeal on merit before deciding preliminary objection, arising out of proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

3. During consolidation, Chak 190 of village Koni tappa Kewatali, pargana Haveli, district Gorakhpur was carved out in the name of Harvinder Singh (respondent-5). The petitioner filed an application (registered as Case No. 85) under Section 12 of the Act, for mutating his name over an area of 0.416 hectare, of the second chak of Harvinder Singh, on the basis of deed dated 2.5.2002. It is alleged that the matter was compromised before Assistant Consolidation Officer between the parties. Assistant Consolidation Officer by order dated 25.7.2003 directed for recording the name of the petitioner over an area of 0.416 hectare on the second chak of Harvinder Singh.

4. Harvinder Singh filed an appeal (registered as Appeal No. 2838 of 2007-08) under Section 11 of the Act on 9.4.2007 alongwith delay condonation application from the order dated 25.7.2003. The petitioner filed an objection on 11.11.2009 in delay condonation application and also raised objection regarding maintainability of the appeal and prayed for deciding the delay condonation application and preliminary objection relating to maintainability of the appeal, before hearing arguments on merit in the appeal. Settlement Officer Consolidation, by order dated 31.12.2013, rejected the application of the petitioner and held that delay condonation application and preliminary objection relating to maintainability of the appeal would be decided alongwith the appeal on merit and fixed 2.1.2014 for final arguments. The petitioner filed a revision (registered as Revision No. 941 of 2013-14) from the aforesaid order but further proceedings of the appeal has not been stayed by Deputy Director of Consolidation in revision. Then he filed an application before Settlement Officer Consolidation for postponing hearing of the appeal during pendency of the revision, which has been rejected by impugned dated 1.2.2014. Hence, this writ petition has been filed.

5. The counsel for the petitioner submits that issue relating to limitation is a issue relating to jurisdiction of the Court. So long as delay is not condoned, Settlement Officer Consolidation has no jurisdiction to hear and decide the appeal on merit. The order impugned in the appeal is an order based on compromise and no appeal is maintainable against a consent order. This Court in Writ B No. 18963 of 2011 has not directed to hear the appeal on merit, ignoring the aforesaid objections. Settlement Officer Consolidation has illegally rejected the application of the petitioner for deciding the delay condonation application and preliminary objection relating to maintainability of the appeal, before hearing arguments on merit in the appeal. He relied upon the judgment of Supreme Court in Manu Bhai J Patel v. Bank of Baroda, (2000) 10 SCC 253, in which it has been held that before condoning delay in filing the appeal, the appeal cannot be decided on merit and judgment of this Court in Radhey Shyam v. Kamla Shankar, 2003 (94) RD 227, in which it has been held that under Section 11 of the Act, only aggrieved party to the proceeding can file an appeal.

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