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Judgment
Vikram Nath, J.—Heard the learned Counsel for the Petitioners and Sri R.P. Srivastava, Advocate appearing for the Respondents - caveator.
When the case was taken up on 17.2.2011, the learned Counsel for the Petitioners had vehemently argued that the recall application filed by the Respondents was not supported by any affidavit. On this the learned Counsel for the Respondents was called upon to obtain instructions in that regard. The order dated 17.2.2011 is quoted herein below:
On the request of Sri R.P. Srivastava, learned Counsel for the Respondents put up this case on Monday, 21.2.211 as a fresh case to enable him to obtain instructions as to whether any affidavit was filed in support of the application dated 28.5.2004 for recalling the compromise decree.
Thereafter the matter was taken up on 21.2.2011 when it was adjourned for today. Sri R.P. Srivastava, learned Counsel for the Respondents has produced a certified copy of the affidavit dated 28.5.2004 which was filed in support of the recall application. Thus the first submission of the learned Counsel for the Petitioners fails and is accordingly rejected. The certified copy of the affidavit is retained on record.
Today learned Counsel for the Petitioners has submitted by changing his stand that his argument was that the recall application was not supported by any application for condonation of delay and affidavit.
Whatever may be the case the fact remains that the recall application was supported by an affidavit and both the courts below having exercised their discretion in recalling the exparte order of compromise and as the matter has been reopened to be decided afresh after affording opportunity of evidence and hearing to the parties, I am not inclined to entertain this petition.
Further the learned Counsel for the Petitioners has relied upon a decision of this Court in the case of Musafir Singh v. Dy. Director of Consolidation and others, reported in 1971 U.P.R.C. 50 in support of his next submission that in case there is an allegation of fraud then the appropriate remedy open to the parties is to file a civil suit challenging the compromise. All these objections can be taken by the Petitioners before the Trial Court when the compromise would be tested. At this stage the judgment relied upon by the learned Counsel for the Petitioners in the case of Musafir Singh (supra) is not of any relevance.
Petition lacks merit and is accordingly dismissed.