The legal principle established is the application of the appropriate provision of law for the recall of an exparte order and the requirement for the appellate authority to record satisfaction regarding service of notice.

Narayan Shukla,J.: -

Heard Mr.Manoj Kumar Gupta, learned counsel for the petitioners as well as Mr.J.P.Maurya, learned counsel for the respondent No.3.

2. The petitioners have challenged the order dated 5th of August, 2003, passed by the Additional Commissioner, Lucknow Division, Lucknow, on the application moved by the petitioners under Order 9 Rule 13 CPC, as also the order dated 24.10.2002, passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow in appeal No.137/87-88.

3. The petitioners, claiming the order dated 24th of October, 2002, passed by the Additional Commissioner as an exparte, moved an application under Order 9 Rule 13 CPC to recall the same and pass a fresh order after providing opportunity of hearing to the petitioners.

4. The learned Additional Commissioner rejected the petitioners' application relying upon the contentions of the respondents that the notice was sent to the petitioners/opposite parties through registered post, the receipt of which was on record. Simultaneously, the notice was also published in the News Paper.

5. Thus, there were rival contentions of the parties regarding the service as well as non service of notice, but I do not find any satisfaction recorded by the Additional Commissioner on the service of notice upon the petitioners/opposite parties. Though he has recorded the finding regarding issuance of notice, but has not recorded any finding regarding service of notice upon the petitioners.

6. On the other hand the petitioners have brought on record the complete order sheet of the case to establish that several dates were fixed for service of notice upon the petitioners/opposite parties, but there is no any order regarding the service of notice upon the petitioners. Thus, they claim that definitely the order was passed without providing them opportunity of hearing, therefore, the order being an exparte order is liable to be recalled.

7. On the other hand Mr.J.P.Maurya, learned counsel for the respondents without disputing the observations of the court below submitted that the petitioners moved an application for recall under the wrong provision of law and submits that in order to recall the order passed by the court of appeal, he was obligated to move the application under Order 41 Rule 21 CPC, wherein he should have raised the plea of non-service of notice also.

8. Upon perusal of the Order 41 Rule 21 CPC, I am satisfied with the submission of Mr.J.P.Maurya, learned counsel for the respondents. Besides it, since there is no satisfaction recorded by the appellate authority regarding service of notice in the order impugned, I find that it is appropriate to remit the matter to the Additional Commissioner to hear the petitioners' application moved before him for recall of the order treating the same under Order 41 Rule 21 CPC and pass a fresh order recording his satisfaction regarding service of notice upon the petitioners/opposite parties during the hearing of appeal. It is further observed that if he finds that no notice was served upon the petitioners/opposite parties, he shall recall the order and pass a fresh order within three months after providing opportunity of hearing to the petitioners.

9. In the aforesaid terms, the writ petition stand disposed of finally.