The main legal point established is that a party cannot seek relief beyond what was pressed in an application under Order 9 Rule 13 of the CPC.

ORDER

1. The respondent No.3 is a plaintiff in a Suit, which was instituted on 18th September, 2014, in which, the petitioner, is the defendant No.3, who was impleaded subsequently by the Court's order, on 17th October, 2015. The plaintiff/respondent No.3, in the Suit had modulated the decree, which was sought from the Court below; in the following manner :-

^^v& ;g fd }kjk LFkk;h fu'ks?kkKk izfroknhx.k dks fuf’k/k fd;k tkos fd os oknh dh iV~Vs'kqnk lEifRr lhekafdr okni= ftlesa oknh dk iq[rk fuekZ.k gqvk gSA fLFkr lqeu ekxZ] dLck dksV}kj] ijxuk o rglhy dksV}kj] ftyk iksMh xढoky ij dksbZ Hkh uo fuekZ.k voS/k :i ls fdlh Hkh izdkj dk vius }kjk ;k vius losZUV ;k ,stsUV }kjk u djsaA o dksbZ dk;Z ,slk u djs ftlls fd lEifRr iV~Vs'kqnk ij oknh ds vf/kdkj izHkkfor gksaA

c& ;g fd }kjk vkns'kkRed fu"ks?kkKk izfroknhx.k dks vknsf'kr fd;k tkos fd os fu/kkZfjr le;kfof/k] tks U;k;ky; }kjk fuf'pr dh tk;s] ds vUnj lEifRr fookfnr ij ls viuk dCtk o n[ky gVk dj dCtk o n[ky oknh dk djk nsa vU;Fkk izfroknhx.k ds [kpZ ij }kjk vehu vnkyr dCtk o n[ky oknh dk djk;k tkosA

l&;g fd mn~/kks"k.kk bl vk'k; dh Qjek;h tkos fd okni= esa fn;s x;s vk/kkjksa dh fcuk ij rFkkdfFkr clh;r fnukafdr 05-04-1990 ,d tkyh] QthZ] dwVjfpr] cukoVh] >wBk o 'kwU; nLrkost gS rFkk fujLr gksus ;ksX; gS fujLr fd;k tkosA rFkk vkns'k ds vuqikyu o vko';d dk;Zokgh gsrq bldh ,d izfr lc jftLVªkj dk;kZy;] dksV}kj ¼ iksMh xढoky½ dks izsf"kr dh tkosA

n& vU; nknjlh tks oknh ds gd esa gks }kjk vnkyr vrk Qjek;h tkosA

M& ;g fd [kpkZ okn dk oknh dks izfroknhx.k ls fnyk;k tkosA^^

2. The said Suit proceeded on merits and, ultimately, it was decreed by the learned Trial Court vide its judgment dated 31st July, 2018, and as a consequence of the judgment and decree, which was rendered, the learned Trial Court, had passed the following decree :-

^^36- oknh dk okn fo:} izfroknh la[;k 1 o 3 lO;; vkKIr fd;k tkrk gS rFkk izfroknh la[;k 3 ds g des gqbZ olh;r fnukafdr 05-04-1990 dks 'kwU; o fu.izHkkoh /kksf"kr fd;k tkrk gSA izfroknh la[;k 1 dks vknsf'kr fd;k tkrk gS fd oknxzLr laifRr ls viuk dCTkk o n[ky gVkdj vkt frfFk ls 30 fnu ds Hkhrj nkoh lEifRr dk dCtk oknh dks lkSai ns rFkk rni'pkr mDr laifRr ij Lo;a o vius ukSdj] ,stsUVksa ls fdlh izdkj ds n[kknkath ls lnSo&lnSo ds fy, fuf"k} jgsA

i=koyh fu;ekuqlkj nkf[ky nrj gksA^^

3. The nature of decree, which was thus rendered by the Court of Civil Judge (Junior Division), Kotdwar, District Pauri Garhwal, on 31st July, 2018, it contained a twin fold declaration, i.e. one in relation to the will dated 5th April, 1990, which was declared as to be null and void, and the second part of the decree was that the defendant No.1 was directed to vacate the disputed property within a period of 30 days from the date of the judgment.

4. The present petitioner, who was impleaded as defendant No.3, contends in the Writ Petition, that he was in occupation of the property, in question, for the reasons best known, he had filed an application on 29th August, 2018, by invoking the provisions contained under Order 9 Rule 13, to be read with Section 151 of the C.P.C., praying therein for setting aside the decree and the manner in which the pleadings was raised, in the recall or the application for setting aside, was confined to the part of the decree, which was effecting him and, particularly, a reference may be had to para 11 of the application under Order 9 Rule 13 and the relief as claimed therein in the application under Order 9 Rule 13. Para 11 of the recall application, under Order 9 Rule 13 is referred as under :-

"It is therefore prayed that in the interest of justice, this learned Court may kindly be pleased to set aside the Exparte judgment dt.31-07-2018 & decree dt.04-08-2018 passed in the OS No. 81 of 2014 - Sh. Mamalluddin V/s Nafees Ahmad & Others and opportunity of proper defence be extended to the applicant/defendant and the aforementioned case be tried in presence of applicant/defendant."

5. The application thus preferred by the petitioner under Order 9 Rule 13 of the CPC; has bee