ORDER

K.N. Misra, J. - Heard learned counsel for the petitioner and perused the impugned order passed by the Deputy Director of Consolidation, Deoria, and the order passed by the Settlement Officer (Consolidation).

2. Briefly stated the facts of the case are that the petitioner Reghunath Sahai had filed an objection under S. 9-A 12), U. P. Consolidation of Holdings Act, hereinafter referred to as the Act. in respect of plot 780 situate in village Kasaya, Tappa Mainpur. district Deoria, claiming that he is the sole Bhumidhar of the plot in dispute and prayed that the names of the recorded persons be expunged. According to the petitioner the names of opposite parties 4 to 7 were wrongly recorded as tenure-holders of the land in dispute. The consolidation Officer vide order dated 30th July 1979 allowed the objection of the petitioner and ordered his name to be recorded as a tenant over the land in dispute directing the names of the recorded persons to be expunged. Against this order appeal was filed before the Settlement Officer (Consolidation) by opposite parties 4 to 6 asserting that the said order was passed ex parte as no notice was served upon them after the case was dismissed in default. They prayed for condonation of delay in filing the appeal. The Settlement Officer (Consolidation), after hearing parties, by order dated 18th September 1980, allowed the appeal and remanded the case to the Consolidation Officer for decision on merits awarding Rs. 15/- as costs. He found that the appellant had shown sufficient cause for the delay in filing the appeal against the impugned order. The petitioner thereupon filed a revision against the said order-which has been dismissed by the Deputy Director of Consolidation on 5th January 1982. The Deputy Director of Consolidation has recorded a finding that the notice was not sufficiently served upon the opposite parties and he did not accept the report of the process server to the effect that the notice was refused to be accepted by the opposite parties. Maintaining the order passed by the Settlement Officer (Consolidation) he has directed the Consolidation Officer to decide the case on merits and the parties were directed to appear before him on 18th January 1982. The petitioner has challenged these orders passed by opposite parties 1 and 2 in the present writ petition.

3. Learned counsel for the petitioner first contended that since opposite parties had put in appearance in the case but subsequently they absented hence the case was directed to proceed ex parte against them vide order dated 9th May. 1979. Although subsequently it was dismissed in default, but on being restored it was ultimately allowed on 30th July, 1979. Learned counsel contended that since no application was moved by the opposite parties for getting the said order dated 9th May. 1979 set aside, they had no right to file appeal against order dated 30th July. 1979 nor they could claim to contest the case on merits. I am unable to agree with this contention.

4. If a case which was ordered to proceed ex parte was itself dismissed in default, the earlier order directing the case to proceed ex parte against opposite parties automatically lapsed and so upon the restoration of the case and its decision on merits, it was not at all necessary for the opposite parties to have first applied for setting aside of the earlier order by which the case was directed to proceed ex parte against them prior to filing of appeal against the final order passed in the case against them.

5. In the instant case it is evident from record that after the said order dated 9th May, 1979 was passed by the Consolidation Officer directing the case to proceed ex parte against the opposite parties, the objection itself was dismissed in default on 15th June, 1979. Thus in this view of the matter, I am unable to hold that the appeal filed by opposite parties 4 to 6 was incompetent on the aforesaid ground urged by the learned counsel for the petitioner.

6. Learne