JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Rituvendra Singh Nagvanshi, learned counsel for petitioner, Sri Ramendra Asthana, learned counsel for private respondents, Sri P.S. Chauhan, learned Standing Counsel for State and Sri Digvijay Tiwari, learned counsel for Nagar Palika. 2. Present matter is arising out of a dispute between the parties over a plot no. 2874 area 0.2830 hectare which abuts the National Highway. It is case of the petitioner that their predecessors were zamindars of the plot in question, a grove land and was recorded in the name of petitioner's predecessors after enforcement of Uttar Pradesh Zamidari Abolition and Land Reforms Act. Petitioner's predecessor Shamim Ara has become a bhumidhar. 3. It is also claimed that land in dispute was originally belong to Mohammed Amir and after his death, his wife Hasina Beigh sustained the property and name of her son came to be mutated in revenue records also. 4. Present proceedings commenced when one Ram Lagan filed a declaratory suit bearing no. 64/26-2-2001 under Section 229-B of the Act, showing Shamim Ara and others as defendants and claimed rights on the land in dispute, however, said suit got dismissed for want of prosecution under Order 9 Rule 8 of CPC on 7th July 2003. No proceedings were initiated to revive said suit and after 14 years, one Sripati has filed another suit under Section 144 Uttar Pradesh Revenue Code, 2006 stating interalia therein that his grandfather was a occupancy tenant and his possession has continued even after date of its being vested and as such he has claimed bhumidhari rights. 5. Learned Senior Advocate for petitioner submits that service upon the defendants was deemed to be served by publication, however, petitioner has not received any notice and in absence of notice, proceedings of suit were proceeded and a decree was passed vide judgement dated 3rd May 2018 being an exparte order. Since petitioner came to know about this said judgement. Later on, he filed a restoration application under Order IX Rule 13 CPC to recall the order. 6. During pendency of said recall application, other parties have created their rights and one Sanjeev Kumar filed an appeal against the ex parte decree without disclosing that an application under Order IX Rule 13 CPC was pending at the behest of petitioner. Later on, he filed a restoration application under Order IX Rule 13 CPC to recall the order. 6. During pendency of said recall application, other parties have created their rights and one Sanjeev Kumar filed an appeal against the ex parte decree without disclosing that an application under Order IX Rule 13 CPC was pending at the behest of petitioner. Said first appeal was dismissed vide order dated 12th December 2018 which led said Sanjeev Kumar to file a second appeal. 7. During pendency of second appeal, restoration application so filed by the petitioner under Order IX Rule 13 CPC was rejected vide order dated 6th November 2020 mainly on ground that decree of suit has already been challenged in second appeal. 8. The petitioner thereafter challenged said order by way of filing a revision petition before the Commissioner, however, same also got dismissed vide order dated 16th April 2021 mainly on ground that second appeal was pending against decree. It appears that thereafter petitioner has not challenged the order immediately as well as he has not filed any application to become appellant in pending second appeal since he was also aggrieved by the decree passed in suit. 9. Subsequently, second appeal filed by Sanjeev Kumar got dismissed by the order dated 19th August 2024 since he has not taken steps in pursuance of orders passed therein. 10. In above circumstances, now the petitioner has challenged not only the order dated 30th May 2018 and 16th April 2021 arising out of rejection of application filed under Order IX Rule 13 CPC as well as rejection of revision petition thereof but the decree dated 6th November 2020 passed in suit as well as order in second appeal filed by Sanjeev Kumar by the Board of Revenue also. 11. Learned Senior Advocate for petitioner submits that application filed by petitioner under Order IX Rule 13 CPC ought to have been decided on merit despite matter was pending before first or second appellate Court in an appeal filed by one Sanjeev Kumar. 12. Learned Senior Advocate further submits that petitioner has liberty to carry forward simultaneously two remedies i.e. an application filed under Order IX Rule 13 CPC to set aside the ex-parte order and to file a substantive first appeal, however, he opted only to file an application to set aside the ex parte order. 12. Learned Senior Advocate further submits that petitioner has liberty to carry forward simultaneously two remedies i.e. an application filed under Order IX Rule 13 CPC to set aside the ex-parte order and to file a substantive first appeal, however, he opted only to file an application to set aside the ex parte order. The petitioner could not be rendered remedy less. 13. Learned advocate for respondents submits that petitioner remained silent after his revision petition got dismissed on 16th April 2021 arising out of an application filed under Order IX Rule 13 CPC on ground of pending second appeal, therefore, he has knowledge of second appeal and since second appeal filed by Sanjeev Kumar was dismissed, now he has rushed this Court to not only challenge the proceedings arising out of Order IX Rule 13 CPC but decree of the suit itself despite he has never filed a first appeal or the second appeal, as the case maybe. The petitioner has not taken any steps to come appellant in second appeal. 14. Heard learned advocates for rival parties and perused the records. 15. It is not in dispute that petitioner has two remedies, either to file an application under Order IX Rule 13 CPC to set aside the ex parte decree or to file first appeal against the substantive order though, only to take both simultaneously, he has opted to file an application under Order IX Rule 13 CPC, however meanwhile, decree passed in the suit was challenged by one Sanjeev Kumar in the first appeal which got dismissed and second appeal was also filed by said person and during pendency of said appeal, application under Order IX Rule 13 CPC was rejected and even its revision was also rejected. Later on, second appeal was also dismissed. 16. It is not in dispute that petitioner has not immediately challenged the order dated 16th April 2021 whereby his revision petition was dismissed and kept waiting for outcome of second appeal filed by another person. Later on, second appeal was also dismissed. 16. It is not in dispute that petitioner has not immediately challenged the order dated 16th April 2021 whereby his revision petition was dismissed and kept waiting for outcome of second appeal filed by another person. It is also not disputed that petitioner has never tried to become appellant either at the stage of first appeal or second appeal filed by another person and since second appeal was dismissed for want of taking steps, the petitioner has now rushed this Court not only to challenge the proceedings arising out of an application to set aside the ex parte decree but also the decree passed in suit as well as orders in first and second appeal. 17. Above referred facts clearly show that the petitioner by his own act has entangled himself in such a situation that not only his application to set aside the ex parte order was dismissed and was being challenged after more than 2 years but challenge to substantive decree passed in suit has also been rejected up to second appeal though filed by another person and he failed to press it by filing a transposition application. 18. Court is of considered opinion that application filed under Order IX Rule 13 CPC cannot be decided on merit since challenge to substantive order was rejected in first appeal and a second appeal was pending at the behest of other person challenging the substantive decree passed in the suit. Since petitioner on his own individual right has opted to file an application to set aside ex parte decree but it is well settled that if a first appeal is dismissed prior in time, the application pending under Order IX Rule 13 CPC would have no legal consequence. 19. Court is also of considered opinion that petitioner has not immediately challenged the order dated 16th April 2021 passed by the Commissioner and has also not tried to become appellant in second appeal and eventually he has lost his remedy. There is no explanation to condone the delay to challenge the order dated 16th April 2021 since it was the petitioner himself who kept waiting for outcome of 2nd appeal filed by another person. Therefore, challenge to order dated 16 April 2021 is hereby rejected. 20. There is no explanation to condone the delay to challenge the order dated 16th April 2021 since it was the petitioner himself who kept waiting for outcome of 2nd appeal filed by another person. Therefore, challenge to order dated 16 April 2021 is hereby rejected. 20. In aforesaid circumstances, petitioner is bound by order passed in first appeal or second appeal may be filed by other person. The petitioner has knowledge of second appeal being pending still has not taken any steps to press it by filing an application for Transposition, therefore, he is now bound by its outcome. No relief could be granted. 21. In view of above, this writ petition is dismissed.