Smt. Premlata and Others vs Mohd. Ahmed and Others

Prakash Krishna, J.—Heard the learned Counsel for the parties.

Challenging the order dated 28.1.2009 passed by the Additional District Judge, Court No. 14, Moradabad in Civil Appeal No. 134 of 1999 rejecting the restoration application of the petitioners, the present writ petition has been filed.

The background facts may be noticed in brief:

A suit for redemption of mortgage being suit No. 537 of 1983 was instituted by the respondent No. 1(since deceased) in the court of Munsif, Moradabad wherein Sada Shiv Sahai the father of the petitioners was impleaded as defendant being the mortgagee. It appears that during the pendency of the said suit after filing of the written statement by the father of the petitioners, he died. The suit was dismissed by the judgment and decree dated 28.9.1999. The matter was carried in Civil Appeal No. 134 of 1999 before the District Judge, Moradabad and it was transferred to Additional District Judge, Court No. 14 who by its judgment and decree dated 10.9.2001 allowed the appeal. Thereafter, the matter was carried in second appeal before this Court by Krishan Sahai who is son of the deceased defendant mortgagee. The said appeal being second appeal No. (81) of 2006 is still pending as it is belated one. The application for condo nation of delay in its filing is pending.

Now, the present petitioners filed an application for setting aside the judgment and decree passed by the first appellate court on the ground that they were not served on the substitution application which was filed due to death of the defendant, who was mortgagee. The said application has been rejected by the court below by the impugned order.

The counsel for the petitioners does not dispute the filing of the Second Appeal No. (81) of 2006. A bare perusal of the judgment of the trial court would show that the said judgment was delivered after full trial and hearing. A copy of the said judgment has been annexed as annexure-3 to the writ petition. It does not show that the suit was dismissed exparte. The suit was dismissed after full fledged trial. The matter was carried in Civil Appeal No. 134 of 1999 and the appellate court allowed the appeal after full contest. In paragraph 6 whereof the appellate court has noticed that Vipin Kumar, Advocate was heard on behalf of the appellant and Shri Ashok Kumar on behalf of respondent Nos. 2 & 3 therein. The appeal as stated herein above, was ultimately allowed.

In this view of the matter, the finding recorded by the court below that the petitioners were heard cannot be said to be in any manner incorrect. The learned Counsel for the petitioners very fairly accepts that the appeal was contested by the brother (Shri Krishna Sahai) of the petitioners. The petitioners are married daughters of the deceased and appears to have been set up by their brother who has lost the case, after contest.

In this fact situation, it is crystal clear that the estate of deceased Sada Shiv Sahai, the mortgagee was fully represented. The filing of the application before the appellate court is nothing but an abuse of the process of the court. I do not find any merit in the writ petition. The writ petition is dismissed summarily.