This petition under Article 227 of the Constitution of India has

been preferred against the order dated 4/4/2019, passed by the Court of

3^rd Additional District Judge, Gwalior in MJC No.46-A/2015, whereby

the application filed by the respondent/State Bank of India under

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Section 151 of Civil Procedure Code (for brevity “CPC”) was allowed

and his application filed under Order IX Rule 13 of CPC bearing MJC

No.26-A/2014 was restored.

2.

Brief facts giving rise to this petition are that the

petitioner/plaintiff has filed a civil suit bearing No.16-A/2007 before the

Court of 14^th Additional District Judge, Gwalior, wherein the

respondent/State Bank of India was one of the party as defendant no.5.

The aforesaid civil suit was transferred to the Court of 3^rd Additional

District Judge, Gwalior and registered as Civil Suit No.56-A/2009.

During the trial of above civil suit, at the stage of defence evidence,

respondent did not produce his witness for cross-examination and

remained absent, therefore, ex parte judgment dated 15/9/2010 was

passed against him. The respondent filed First Appeal before this Court

as well as an application under Order IX Rule 13 of CPC before the

Court of 3^rd Additional District Judge, Gwalior for setting aside the

alleged ex parte judgment and decree passed against him. His

application filed under Order IX Rule 13 of CPC was registered as MJC

bearing No.26-A/2014, which was dismissed on 29/7/2015 for want of

prosecution as well as for non-compliance of the orders of the learned

Trial Court. The respondent/State Bank of India filed an application

under Section 151 of CPC bearing MJC No.46-A/2015 for setting aside

the aforesaid order dated 29/7/2015 and restoration of MJC No.26-

A/2014. By the impugned order, learned Trial Court allowed

respondent's application and restored the application filed under Order

IX Rule 13 of CPC bearing MJC No.26-A/2014, which is pending

before the Court of 3^rd Additional District Judge, Gwalior.

3.

Learned counsel for the petitioner submits that in view of the

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specific provisions of appeal available under Order XLIII Rule 1 (c) of

CPC, the order of dismissal of the application filed under Order IX Rule

13 of CPC cannot be assailed under Section 151 of CPC before the

same Court, as held by Hon'ble the Full Bench of this Court in the case

of Nathu Prasad Vs. Singhai Kapurchand, 1976 AIR (MP) 136,

hence, the application filed by the respondent under Section 151 of CPC

was not maintainable. Learned Trial Court has committed error of

jurisdiction in entertaining and allowing the respondent's application

filed under Section 151 of CPC. He has also relied upon the judgment

passed by Hon'ble the Apex Court in the case of Neerja Realtors

Private Limited Vs. Janglu (Dead) Through Legal Representative,

(2018) 2 SCC 649. He further submits that the application filed by the

respondent under Section 151 of CPC was without sign and seal of the

authorised person of the respondent/State Bank of India. The counsel

for the respondent himself filed the said application without any

authority. Learned Trial Court illegally held that the Vakalatnama filed

in MJC No.26-A/2014 will be treated as a valid Vakalatnama in the

aforesaid case bearing MJC No.46-A/2015. Thus, the impugned order

dated 4/4/2019 is liable to be set aside, hence, be set aside.

4.

Learned counsel for the respondent/State Bank of India by

referring to the same judgment passed by the Full Bench of this Court in

the case of Nathu Prasad (supra) submits that an application assailing

the order of dismissal of the application filed under Order IX Rule 13 of

CPC, cannot be said to be an application for restoration suit, therefore,

the same is not appealable under Order XLIII Rule 1 (c) of CPC, and

hence, respondent's application filed under Section 151 of CPC for

setting aside the order dated 29/7/2015 was very well maintainable.

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Learned Trial Court has not committed any error in allowing his

aforesaid applicat