IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Writ Petition No. 460 of 2009 (M/S)

Sri Devidayal Singh

…..Petitioner

Versus

Additional Commissioner, Garhwal Mandal & others

......….Respondents

Present:

Mr. N.S. Negi, Advocate with Mr. Dinesh Chauhan, Advocate for the

petitioner.

Mr. A.K. Joshi, Additional Chief Standing Counsel for the

State/respondent nos. 1 & 2.

Mr. Sharad Sharma, Senior Advocate assisted by Ms. Vandana Singh,

Advocate for private respondents.

Hon’ble Alok Singh, J (Oral).

Present petition is preferred assailing the

judgment and order dated 22.4.2002 passed by the

Assistant Collector, Ist Class, Kotdwar, preliminary

decree

dated

8.11.2000

passed

by

the

Assistant

Collector, Ist Class, Kotdwar, final decree dated 2.5.2002

passed by the Assistant Collector, Ist Class, Kotdwar as

well as judgment and order dated 9.1.2009 passed by

the Additional Commissioner, Garhwal.

Brief facts of the present case, inter alia, are

that respondent nos. 3 & 4, herein, have filed revenue

case No. 11 – 99/2000 against the petitioner, respondent

nos. 5, 6, 7 & 9 under Section 176 of the UPZA & LR Act

seeking partition of the suit property situated in

khatauni khata No. 7 measuring 2.560 hectares, Village

Teliwara, Patti Haldukhata, Tehsil Kotdwar, District

Pauri Garhwal; vide order dated 27.7.2000, suit was

directed to be proceeded ex parte against the defendants;

vide ex party judgment and decree dated 8.11.2000, suit

was decreed ex parte declaring the share of the plaintiff

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as 2/3^rd in the property in question and 1/3 share of the

petitioner/defendant, therein; Smt. Rameshwari Devi

claiming herself to be power of attorney holder of the

petitioner, herein, moved an application dated 25.7.2001

to recall the order dated 27.7.2000, whereby suit was

directed to be proceeded ex parte; the petitioner himself

also moved another application on 31.7.2001 to recall the

order dated 27.7.2000, whereby suit was directed to be

proceeded ex party against him.

It is important to mention herein that in the

suit, ex parte preliminary decree was passed on

8.11.2000, however, neither the petitioner nor his wife

Smt. Rameshwari Devi ever made request to recall ex

party judgment and decree dated 8.11.2000 and only

request made was by both of them to recall the order

dated 27.7.2000, whereby suit was directed to be

proceeded ex parte.

Be as the case may be, applications to recall

the order dated 27.7.2000, whereby directions were

issued to proceed ex parte against the defendants in a

suit, was dismissed vide order dated 22.4.2002 and

thereafter final decree was also passed on 2.5.2002.

Again, it is important to mention herein that

neither any application was moved to set aside the ex

parte decree or final ex parte decree nor any appeal was

filed either challenging the preliminary decree dated

8.11.2000 or the final decree dated 2.5.2002, however,

revision was filed challenging the order dated 22.4.2002,

whereby applications to recall order dated 27.7.2000

were dismissed. Meanwhile, revision so filed also came to

be dismissed.

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It is settled position of law that order directing

to proceed ex parte in a suit against the defendant shall

always stand merged in the ex parte judgment and

decree, therefore, defendant ought to have moved an

application for setting aside ex parte judgments and

preliminary and final decree and to restore the suit on its

merit. However, in the present case, this was not done

and only request was made to recall the order dated

27.7.2000, which has already merged in the preliminary

decree dated 8.11.2000.

Now, by way of present petition, the petitioner

wants to challenge the preliminary decree as well as final

decree and the orders rejecting the application seeking

recall of the order dated 27.7.2000.

In view of the discussions made hereinbefore,

present petition is totally misconceived and ill