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2015 DIGILAW 322 (ALL)

Wahidunnisha v. Zalemunnisha

2015-02-18

ABHINAVA UPADHYA

body2015
JUDGMENT Abhinava Upadhya, J. Heard Sri S.K.Chaubey, learned counsel appearing for the appellant. 2. By means of this First Appeal From Order, the appellant has challenged the order in Civil Appeal No. 20 of 2011 by which the appellate court while setting aside the ex parte decree has remanded the matter for consideration. 3. The appellant had filed a suit for cancellation of sale deed being Original Suit No. 71 of 2004. The said suit was decreed ex parte on 30.5.2008. It is claimed that the defendant in the suit without filing an application under Order IX Rule 13 CPC straight away preferred an appeal and in appeal the plaintiff-appellant had now taken an objection that there was manipulation in the order sheet of the trial court in which date 9.4.2008 has been changed by overwriting as 4.9.2008 and, therefore, an expert be called to verify the signature on the said overwriting with that of the defendant. 4. The appellate court rejected the application by order date 7.9.2013 saying that this question would be considered at the time of final hearing or disposal of the appeal. 5. According to the learned counsel appearing for the appellant, without deciding the said question with regard to overwriting on the date, the appellate court by its judgment and order dated 13.1.2015 has remanded the matter back to the trial court after setting-aside the ex parte decree. By the remand order it has been observed that after taking into account the written statement that may be filed by the defendant in the suit at the time of framing of issue, such a question would be considered and decided. 6. Since the matter has already been remanded and liberty has been granted to the plaintiff to raise the question with regard to change of date in the order sheet,? issue to that effect now will have to be framed and decided. As such, I am not inclined to interfere with the order at this stage. It is further provided that after written statement is filed and the issue is framed, the objection of the plaintiff with regard to change of date will also be considered? and decided accordingly. It is further provided that the suit will be proceeded with? and decided in accordance with law, without granting unnecessary adjournment to either of the parties. 7. It is further provided that after written statement is filed and the issue is framed, the objection of the plaintiff with regard to change of date will also be considered? and decided accordingly. It is further provided that the suit will be proceeded with? and decided in accordance with law, without granting unnecessary adjournment to either of the parties. 7. Subject to the aforesaid observation, the appeal is finally disposed of.