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2023 DIGILAW 1180 (ALL)

Jumman v. State of U. P.

2023-04-27

SAURABH LAVANIA

body2023
JUDGMENT Saurabh Lavania, J. Heard Sri Dilip Kumar Pandey, learned counsel for the petitioners, Sri Hemant Kumar Pandey, learned State counsel for the respondent Nos. 1 to 4 and Sri Mohan Singh, Advocate, who has received notice on behalf of the respondent No. 5/Land Management Committee. 2. It is stated by the learned counsel for the petitioners that vide order dated 22.02.1993 passed by the Pargana Adhikari, Tiloi, District- Raebareli, the land/property, in issue, was recorded in the name of State and thereafter the part of land, in issue, was allotted to the father of the petitioners namely Naseer and after his death, the name(s) of the petitioner(s) were recorded in the revenue records. 3. Challenging the order dated 22.02.1993, a revision registered as Case No. 182/1992-1993, Computerized Case No. C1993100000120 (Dayaram v. State) under Section 219 of U.P. Land Revenue Act, 1901 (in short "Act of 1901") was filed by the respondent No. 6 (Sayaram s/o Sewa) and in the revision, neither Naseer (father of the petitioners) was imp-leaded nor the petitioners were imp-leaded and by the impugned order dated 13.05.2022, the revision has been allowed and the impugned order is affecting the rights of the petitioners as the revenue record of part of land, in issue, bears the name(s) of the petitioners. As such, the present petition challenging the order dated 13.05.2022 has been preferred and in the light of facts and circumstances of the case, indulgence of this Court is required in the matter. 4. Learned State counsel apposing the present petition has stated that the petitioners are having remedy of revision under Section 219 of the Act of 1901 and as such, the present petition is not maintainable. 5. He also stated that if the petitioners are aggrieved by the order dated 13.05.2022 then they can also prefer an application for recall of the order dated 13.05.2022. 6. On the aforesaid aspect of the case, reference can be made to the following judgments. 7. 5. He also stated that if the petitioners are aggrieved by the order dated 13.05.2022 then they can also prefer an application for recall of the order dated 13.05.2022. 6. On the aforesaid aspect of the case, reference can be made to the following judgments. 7. In the judgment dated 01.05.2012 passed by this Court in WRIT- C No. 20020 of 2012 [Bandhu Ram And Another v. State Of U.P. And Others], reported in 2012 SCC Online All 4273 : (2012) 116 RD 629 , wherein, this Court while considering the issue related to second revision, observed as under:- "For appreciating the controversy in hand, it would be appropriate to go through the language used in Section 219 of U.P. Land Revenue Act 1901. For appreciation, the aforesaid section is quoted below. 219. Revision - (1) The Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any revenue Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate revenue Court appears to have - (a) exercised a jurisdiction not vested in it bylaw, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of jurisdiction illegally or with material irregularity, the Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, pass such order in the case as he thinks fit. (2) If an application under this section has been moved by any person either to the Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Road Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them. (2) If an application under this section has been moved by any person either to the Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Road Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them. From going through the language used in Sub-section 2 of Section 219 it transpires that if an application under this section has been moved by any person before the Commissioner, or to the Additional Commissioner, or the Collector or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them meaning thereby if any person has already filed a revision under Section 219 before any of the authority referred above, no second application under this Section shall lie to the higher Court by the same party. This provision was inserted vide U.P. Act No. 20 of 1997. Prior to that there was no such provision and the revision was entertained against a revisional order passed by the court subordinate to the court whereas the second revision could be filed. By virtue of sub-section 2 of Section 219 the legislature has prohibited filing of the second revision by the same party. Here in this case, the same party has not filed the revision before the Additional Commissioner Basti Division Basti and it is the respondent no. 3 who has filed the revision before the Additional Commissioner therefore the bar contained in Sub section 2 of Section 219 would not come into play and the petitioner will still have a right to file a revision against the order impugned before the Board of Revenue. So far as the argument of Sri Singh with regard to putting at par the power of each revisional court at same footing is concerned that is only referable to Sub-section (2) of Section 219, which put an embargo on the right of a person to file second revision and that cannot be interpreted in a manner that if a person has filed revision before any court then the revision against the said order would not lie on the instance of another side. The language used in Section 219 (1) and (2) has to be read and understood in its natural meaning as the language used therein is unambiguous and clear. The language used in Section 219 (1) and (2) has to be read and understood in its natural meaning as the language used therein is unambiguous and clear. It is settled principle of interpretation that first of all interpretation has to be made in its natural sense and in case there is any ambiguity in the same, the efforts should be made to interpret in a manner so that it may achieve the object of Act or Section which is under interpretation. Here in this case, the object of Sub-section (2) of Section 219 is that the second revision would not lie by the same party meaning thereby if a person has availed the remedy of revision under Section 219 of the Act another revision would not lie by the same party under the aforesaid section (Section 219). In view of that, I am of the considered opinion that revision would lie against an order passed under Section 219, if availed by other side, under the same section by another side." 8. In the case of Asit Kumar Kar v. State of West Bengal reported in (2009) 2 SCC 703 , the Hob'ble Apex Court observed that there is a distinction between a review petition and a recall petition; while in review petition the Court considers on merits where there is an error apparent on the face of the record; in a recall petition, the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to the affected party;" 9. This Court in the case of Narendra Kumar Sharma v. Nand Kishore Sharma; 2016 SCC Online All 3654, regarding power to recall, observed as under:- "10. Jurisdiction of the Court to recall ex parte order exercising power under section 151, C.P.C. has been upheld by Supreme Court in Indian Bank v. Satyam Fibres (India) (P) Ltd., in which it has been held that, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. Following judgments of High Courts have been approved in this judgment namely Devendra Nath Sarkar v. Ram Rachpal Singh; Saiyed Mbhd. Following judgments of High Courts have been approved in this judgment namely Devendra Nath Sarkar v. Ram Rachpal Singh; Saiyed Mbhd. Raza v. Ram Saroop; Bankey Behari Lal v. Abdul Rahman; Gajanand Sha v. Dayanand Thakur; Krishnakumar v. Jawand Singh; Benoy Krishna Mukerjee v. Mohanlal Goenka; and Lekshmi Amma Chacki Amma v. Mammen Mammen. 11. Supreme Court in Budhia Swain v. Gopinath Deb, held that what is a power to recall? Inherent power to recall its own order vesting in Tribunals or Courts and set aside an orders: (i) obtained by fraud practised upon the Court, (ii) when the Court is misled by a party, or (iii) when the Court itself commits a mistake which prejudices a party. 10. In the case of Narendra Kumar Sharma (supra), this Court also observed as under:- "Supreme Court in Om Prakash Marwaha v. Jagdish Lai Marwaka, relying upon in Jang Singh v. Brij Lal, held that a litigant should not suffer on account of the lapse made by an officer of the Court. Applying the well-known maxim actus curiae neminem gravabit, that an act of Court should do no harm to a litigant, this Court held that the mistake should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred. Madhya Pradesh High Court in Khoobchand Jain v. Kashi Prasad, and this Court in Arjun Prasad v. Smt. Ameer Jahan Begum, and Matter Under Article 227 No. 7036 of 2015, State of U.P. v. Saifi Abdul Hasan, decided on 11.12.2015, also held that if due to mistake committed by Court case was dismissed in default then order can be recalled." 11. The observations on the issue of power to recall in the case of Daya Engg. Works (Sleeper) Ltd. v. Union of India and Another; 2023 SCC Online Del 178, are as under:- "14. In the case of Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 , the Hon'ble Supreme Court held as under: "6. What is a power to recall? Works (Sleeper) Ltd. v. Union of India and Another; 2023 SCC Online Del 178, are as under:- "14. In the case of Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 , the Hon'ble Supreme Court held as under: "6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. [ (1996) 5 SCC 550 ] Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order (i) obtained by fraud practised upon the court, (ii) when the court is misled by a party, or (iii) when the court itself commits a mistake which prejudices a party. In A.R. Antulay v. R.S. Nayak [ (1988) 2 SCC 602 : 1988 SCC (Cri) 372 : AIR 1988 SC 1531 , para 130] (vide para 130), this Court has noticed motions to set aside judgments being permitted where (i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, (ii) a judgment was obtained by fraud, (iii) a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service. 7. In Corpus Juris Secundum (Vol. XIX) under the chapter "Judgment -Opening and Vacating" (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results. 8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence." 12. In the case of Mumtaz Ahmad and Others v. D.D.C. and Others; 2015 SCC Online All 9632, the Consolidation Officer recalled the final orders and being aggrieved, two revisions were filed which were allowed by an order of remand, whereby, directing the Consolidation Officer to decide the application(s) for recall of the order(s) afresh after providing an opportunity of hearing to the parties and thereafter, the writ petition was filed and this Court in these facts of the case, observed as under:- "6. I have considered the arguments of the Counsel for the parties and examined the record. I have considered the arguments of the Counsel for the parties and examined the record. The question referred to Full Bench for consideration was as to whether under U.P. Consolidation of Holdings Act, 1953 and U.P. Consolidation of Holdings Rules, 1954, jurisdiction of review has been conferred upon the consolidation authorities. The arguments raised before Full Bench in Anarkali v. DDC 1997 (15) LCD 921 (FB), was that as by virtue of section 41 of the Act, Chapter IX and X of U.P. Land Revenue Act, 1901 were applied and section 210 falling under Chapter X of U.P. Land Revenue Act, 1901 conferred power of review upon highest revenue Court i.e. Board of Revenue U.P. as such Deputy Director of Consolidation who is highest consolidation Court was vested with the power of review. Full Bench held that jurisdiction of review has to be conferred by the statute itself. By virtue of section 41 of the Act, only procedure contained in Chapter IX and X of U.P. Land Revenue Act, 1901 were applied to the proceedings provided under the Act. As under the Act, there is no provision of review as such provision of review under section 210 of U.P. Land Revenue Act, 1901 will not apply. In concluding paragraph of the judgment words "review/recall" has been used which means recalling the order by way of review. 7. So far as recalling of ex parte order is concerned, every Court/Tribunal has inherent jurisdiction to recall the ex parte orders. This power is derived upon the maxim "actus curiae neminem gravabit." By act of the Court no one should suffer any injury. If a Court/Tribunal passed ex parte order in violation of principles of natural justice then it has jurisdiction to recall its such order on the application of aggrieved person. 8. Similar controversy came up for consideration before Supreme Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal 1980 Supp SCC 420 : AIR 1981 SC 606 . In which it has been held that it is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. 8. Similar controversy came up for consideration before Supreme Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal 1980 Supp SCC 420 : AIR 1981 SC 606 . In which it has been held that it is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji Arjun singh ji 1997 (15) LCD 921 (FB), is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil Court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11. The answer to the question is, therefore, to be found in sub-section (1) of section 11 and not in sub-section (3) of section 11. Furthermore, different considerations arise on review. The answer to the question is, therefore, to be found in sub-section (1) of section 11 and not in sub-section (3) of section 11. Furthermore, different considerations arise on review. The expression "review" is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Patel Narshi Thakershi's case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. 9. Supreme Court again in Rabindra Singh v. Financial Commr. Coop. 1997 (15) LCD 921 (FB) held that what matters for exercise of jurisdiction is the source of power and not the failure to mention, the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict. Same view has been again taken in Sunitadevi Singhania Hospital Trust v. Union of India 1980 Supp SCC 420 : AIR 1981 SC 606 . In view of the aforesaid discussion, the writ petition has no merit and is dismissed." 13. In a recent judgment passed in the case of My Palace Mutually Aided Co-operative Society v. B. Mahesh and Others reported in 2022 SCC Online SC 1063, the Hon'ble Apex Court considering the issue related to preferring an application for recall of a final order as also of exercise of inherent power and on this aspect observed as under:- "24. We have heard the learned Senior counsel on either side, perused the entire material on record. Though several grounds have been raised, the first ground taken is that the High Court erred in exercising jurisdiction under section 151 of the CPC, when alternate remedies exist under the CPC. We have heard the learned Senior counsel on either side, perused the entire material on record. Though several grounds have been raised, the first ground taken is that the High Court erred in exercising jurisdiction under section 151 of the CPC, when alternate remedies exist under the CPC. Second ground is that the Senior Judge on the Bench, who appeared for one of the parties, ought not to have heard the matter. 25. In response to the first leg of challenge, i.e., on the procedural aspect, we may note that the recall application was filed under section 151 of the CPC against the final decree dated 19.09.2013. It is in this context that we must ascertain whether a third party to a final decree can be allowed to file such applications, by invoking the inherent powers of the Court under section 151 of the CPC. 26. section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction and utilize the same to meet the ends of justice or to prevent abuse of process. Although such a provision is worded broadly, this Court has tempered the provision to limit its ambit to only those circumstances where certain procedural gaps exist, to ensure that substantive justice is not obliterated by hyper technicalities. As far back as in 1961, this Court in Padam Sen v. State of U.P., AIR 1961 SC 218 , observed as under: "8. ...The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code." (emphasis supplied) 27. In exercising powers under section 151 of the CPC, it cannot be said that the civil courts can exercise substantive jurisdiction to unsettle already decided issues. In exercising powers under section 151 of the CPC, it cannot be said that the civil courts can exercise substantive jurisdiction to unsettle already decided issues. A Court having jurisdiction over the relevant subject matter has the power to decide and may come either to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional court, the same is binding on the parties until it is set aside by an appellate court or through other remedies provided in law. 28. section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law. Such inherent power cannot override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC. 29. The respondents in the present case had access to recourse under section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, and the final decree passed by the High Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under section 96 of the CPC, for the respondents. Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party. section 96 of the CPC reads as under: 96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.] 30. sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned. 31. In the light of the above, it can be safely concluded any aggrieved party can prefer an appeal with the leave of the Court. 32. The High Court, in the impugned judgment, relied on the judgment of this Court in Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 , wherein this Court acknowledges the possibility of maintaining a recall application against a judgment if it is obtained by fraud on the Court. However, it went on to hold that in cases of fraud, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. The Court held as follows: "22. The judiciary in India also possesses inherent power, specially under section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud..." 33. The subsequent judgment of this Court in Ram Prakash Agarwal v. Gopi Krishan, (2013) 11 SCC 296 further clarifies the law on the use of the power under section 151 of the CPC by the Court in cases of fraud and holds as follows: "13. The subsequent judgment of this Court in Ram Prakash Agarwal v. Gopi Krishan, (2013) 11 SCC 296 further clarifies the law on the use of the power under section 151 of the CPC by the Court in cases of fraud and holds as follows: "13. section 151 CPC is not a substantive provision that confers the right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. The court can do justice between the parties before it. Similarly, inherent powers cannot be used to re-open settled matters. The inherent powers of the Court must, to that extent, be regarded as abrogated by the legislature. A provision barring the exercise of inherent power need not be express, it may even be implied. Inherent power cannot be used to restrain the execution of a decree at the instance of one who was not a party to suit. Such power is absolutely essential for securing the ends of justice, and to overcome the failure of justice. The Court under section 151 CPC may adopt any procedure to do justice, unless the same is expressly prohibited. Xxx 19. In view of the above, the law on this issue stands crystallised to the effect that the inherent powers enshrined under section 151 CPC can be exercised only where no remedy has been provided for in any other provision of CPC. In the event that a party has obtained a decree or order by playing a fraud upon the court, or where an order has been passed by a mistake of the court, the court may be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised." (emphasis supplied) 34. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised." (emphasis supplied) 34. The High Court, relying upon the above judgments of this Court which recognizes the power to recall, seems to have lost sight of the restrictions imposed while exercising jurisdiction under section 151 of the CPC, which were elaborately discussed by this Court in the above referred judgment about exercising of the power under section 151 of the CPC being only in circumstances where alternate remedies do not exist. 35. Therefore, we are of the firm opinion that recalling a final decree in such circumstances cannot be countenanced under section 151 of the CPC. The High Court erred in exercising its jurisdiction under section 151 of the CPC, to hear and pass a detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing the respondents to pursue the effective alternate remedies under law. Having said the above, we must clarify that we are not, in any way, doubting the proposition of law that fraud nullifies all proceedings, or that the Court has power to recall an order which was passed due to a fraud played on the Court. However, while exercising the power under section 151 CPC for setting aside the final judgment and decree, the Division Bench should have taken into consideration the restriction which was observed by this Court in the captioned judgment. Once we have come to the irresistible conclusion that exercising power under section 151 CPC in the facts and circumstances of the case is bad, we are not inclined to go into further issues that were extensively argued." 14. It is well settled legal position that a person, who is affected by a judgment but is not a party to the suit/proceedings can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment, which sought to be impugned. 15. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment, which sought to be impugned. 15. In this case, the remedy of appeal is not available as the impugned order dated 13.05.2022 was passed by the Additional Commissioner in the revision filed under Section 219 of the Act of 1901 by the respondent No. 6, in which, the petitioners were not the party nor their father was imp-leaded as party in the revision and Section 219 of the Act of 1901, as per settled view, provide remedy of revision before the Authority concerned to a person, who has not filed the revision. 16. Considering the facts of the case as also Section 219 of the Act of 1901 including expression "any person" and "same person" used therein and the judgment(s) referred above, as per which, this Court is of the view that the petitioners are having remedy to assail the order dated 13.05.2022, impugned herein, passed by the respondent No. 2/Additional Commissioner Judicial-I, Lucknow Division Lucknow in a revision preferred by the respondent No. 6/Dayaram registered as Case No. 188/1992-1993, Computerized Case No. C1993100000120 (Dayaram v. State of U.P.) by preferring a revision under Section 219 of the Act of 1901, before the Board of Revenue. For these reasons, this Court is not inclined to entertain this petition. 17. The petition is accordingly dismissed with liberty to the petitioners to avail appropriate remedy, as provided under law, before appropriate forum.