JUDGMENT : Rajan Roy, J. Heard. 2. The facts of the case in brief are that the suit property bearing Plot No. 28/Khasra No. 349, Bhaptamau, Lucknow, recorded in Khatauni No. 15 and Gata No. 900/2 measuring 1.8960 Hectare was recorded in the name of Aditya Kumar Mishra, husband of the petitioner herein who died, regarding which there is no dispute. 3. The father of Aditya Kumar Mishra claimed declaration in respect of the said holding of Aditya Kumar Mishra, in his favour, on the basis of a registered Will executed by him in his favour in a suit filed under section 229-B, which was dismissed, inter alia, on the ground that the original Will had not been annexed with the plaint on 26.12.2012. Being aggrieved, the father Mahasevak Mishra filed an appeal under section 331 of the U.P. Zamindari Abolition & Land Reforms Act 1950. During pendency of the appeal the appellant died. As he had three surviving daughters who are married, his counsel moved an application for substitution whereupon the three daughters were substituted, however, it is said that only one of them Neelima Dwivedi contested the appeal by putting in appearance. At this stage it is informed that in fact prior to his death the appellant had executed a Will dated 14.3.2012 wherein the suit property fell in the share of Neelima Dwivedi and not the other two daughters namely Chetna Pandey and Preeti Tiwari. 4. Contention of Hemant Kumar Mishra, the learned counsel for the petitioner is that based on this very Will all the three daughters claimed mutation of their names in respect of the holdings of their father and the mutation proceedings are still pending. In the meantime the appeal was decided on merits vide judgment and decree dated 4.5.2012 after hearing the counsel for Neelima Dwivedi, the contesting appellant. On 29.10.2015 the other two daughters who under the will had not been given the suit property, filed an application for restoration of the appeal and recall of the aforesaid judgment purportedly under Order 9, Rule 13, C.P.C. It is this application which has been allowed by the impugned order dated 18.8.2017 on the ground that though these two daughters were substituted, they were not heard. 5. 5. The contention of the learned counsel for the petitioner is that these two daughters were aware of the appeal, but had not contested deliberately as under the Will they had not been granted the suit property which fell in the share of the third daughter Neelima Dwivedi and in fact in the mutation proceedings also these two daughters have claimed only their share of the property under the Will and the property in question has not fallen in their share as per the Will. He says that the Will has not been challenged by them. In this scenario there was no occasion, whatsoever, for the other two daughters to have sought restoration of the appeal and recall of the judgment passed therein. 6. It is also the contention of Sri Mishra, learned counsel for the petitioner that the application under Order 9, Rule 13 can only be maintained by the defendant and not by the appellant, therefore, the same was not maintainable. Furthermore when the counsel for the respondent Sri Suresh Chandra relied upon Order 41, Rule 17, he contended that it would apply only in cases where the judgment had been passed for want of prosecution or default, but not on merits. 7. In response, Sri Suresh Chandra, Advocate along with Sri Devi Chand Dubey, Advocate appearing for the contesting respondent No. 2 and 3 contended that the suit had been filed by their father on the basis of an unregistered Will executed by Aditya Kumar Mishra, therefore, if the suit succeeds, they will have a right, however, on being confronted that even assuming that the Will can be proved, all that the opposite party Nos. 2 and 3 will get is the share defined by their father Mahasevak Mishra under the Will which is not in dispute and has not been challenged by them and the property in dispute in these proceedings was not bequeathed to them under the said Will, but to Neelima Dwivedi, they could not give any satisfactory reply as to how in this scenario the judgment passed by the appellate court on merits after hearing Neelima Dwivedi could be recalled and the appeal could be restored at their behest. 8. 8. At this stage Sri Suresh Chandra, Advocate raised a preliminary objection that the writ petition against the order of the appellate court is not maintainable, firstly, for the reason that there is a remedy of revision. Secondly, for the reason all that has been done is that the appeal has been restored. 9. As regards the contention that the appeal has merely been restored, this Court has no doubt in its mind that the application for restoration was not maintainable at the behest of the opposite party No. 2 and 3 who had no right, title or interest in the suit property which was the subject matter in appeal assuming that there is any provision under which an order passed on merits after hearing the contesting respondents in appeal could be recalled. As regards the other contention with regard to remedy of revision under section 333, this court is of the view that, considering the facts of the case where it is apparent that the opposite party Nos. 2 and 3 could not have maintained the application for recall of the judgment passed in appeal as mentioned here-in-above, it is not a fit case where the petitioner should be relegated to the remedy of revision, especially as there is not much of a factual dispute involved on the relevant issue which has fallen for consideration before this Court, and the facts and law point towards only one direction. 10. Sri Suresh Chandra, Advocate at this stage made a last desperate attempt to save the interest of his client by saying that the petitioner had re-married. This was not an issue involved in the proceedings before the Court below, therefore, it does not fall for consideration before this Court at this stage. 11. It is also noteworthy that Neelima dwivedi in whose share the suit property, which was the subject matter in appeal fell as per the Will executed by the father Mahasevak Mishra, has not challenged the judgment and decree of the Appellate Court, as informed by the learned counsel for the parties present and the same has attained finality in this regard. In this view of the matter the Appellate Court erred in recalling the final judgment 4.5.2012, which was on merits after hearing the contesting respondent, at the behest of the opposite party No. 2 and 3, therefore, the appellate order is quashed. 12. In this view of the matter the Appellate Court erred in recalling the final judgment 4.5.2012, which was on merits after hearing the contesting respondent, at the behest of the opposite party No. 2 and 3, therefore, the appellate order is quashed. 12. The writ petition is allowed in the aforesaid terms.