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1992 DIGILAW 1082 (ALL)

Chander v. Kishuni

1992-08-17

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This second appeal has been filed under Section 331 (4) of U.P. Act No. 1 of 1951 against the order of the Additional commissioner Gorakhpur Division, Gorakhpur dated 18-7-1991. 2. This appeal has been put up before the presence of both the parties for admission. Arguments of learned counsels for both the parties have been heard on this point. 3. In brief the facts of the case are that Chander filed a suit No. 118/12 under Section 229-B of U.P. act No. 1 of 1951 in which he got the decree on the basis of compromise. Then the restoration application was moved by Ghurahu and others that he has not compromised in the suit. Some person have fraudulently compromised on his behalf. He also pleaded that he has sold the disputed plots to Smt. Kishuni & others. The trial court rejected the restoration application of Ghurhu and others vide its order dated 27-2-1990. Against which appeal was filed before the Addl. Commissioner who has allowed the appeal and remanded the case to decide the restoration application afresh. 4. Learned counsel for the appellant argued that the restoration application was time-barred, Hence delay in filing the restoration application should be explained. The finding recorded by the trial court is also against the law and facts. He also referred the law point in 1987 R.D. page 416 and 1970 A.L.J. page 107. 5. The learned counsel for the opposite party argued that the restoration application has not been allowed still the Additional Commissioner has just remanded the case, therefore no revision or appeal lies against that order. He also argued that no substantial question is involved in the present appeal, hence the appeal is not maintainable, it should be dismissed. 6. The additional Commissioner has set aside the order of the trial court ad has remanded the restoration application to be decided afresh because it is alleged that Ghurehu has sold his interest in the property. Therefore, the finding is to be recorded on this point definitely what will be the effect of that sale whether still that sale is binding or not ? Ghurhu has alleged that he has not compromised in the suit. This fact is also to be proved whether he has compromised or not ? Therefore, the finding is to be recorded on this point definitely what will be the effect of that sale whether still that sale is binding or not ? Ghurhu has alleged that he has not compromised in the suit. This fact is also to be proved whether he has compromised or not ? There is no clear cut finding on this finding, therefore the remand order is justified and this appeal is not maintainable Against remand order. Hence it is summarily rejected.