Neutral Citation No. - 2025:AHC:72721 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 1316 of 2016 Petitioner :- Lakshaman Respondent :- Mahender And 3 Others Counsel for Petitioner :- Bishram Tiwari Counsel for Respondent :- Dharmendra Kumar,Mahendra Singh,Satyendra Kumar Singh Hon'ble Rohit Ranjan Agarwal,J. 1. This is plaintiff's petition. An original suit for cancellation of sale deed dated 30.03.1965 being Original Suit No.2209 of 1997 was instituted by the petitioner-plaintiff. In the said suit, the defendants respondents has put in appearance and the plaintiffs' witness was examined. As the defendants had not appeared, the suit was decreed on 26.8.2010. The defendants filed an application under Order IX, Rule 13 C.P.C. read with Section 151 C.P.C. for recalling the judgment dated 26.8.2010. The said application was rejected on 26.07.2011. Against the said order, no miscellaneous appeal under Order XLIII, Rule 1(d) C.P.C. was preferred by the defendants-respondents instead another miscellaneous application was filed, which was registered as Misc. Case No.64 of 2010 for recalling the order dated 26.8.2010. The trial Court allowed the said application and recalled the judgment dated 26.08.2010 on 08.11.2013. Against the said order, a revision No.4 of 2013 was preferred, which has been rejected by the order impugned. 2. List has been revised. No one is present on behalf of either of the parities. I have perused the material on record. 3. I find that the judgment rendered by the trial Court on 26.08.2010 was after considering the issues framed by the trial Court and the evidence led by the parties. It was not ex parte judgment and the application moved under Order IX Rule 13 C.P.C. was not maintainable and the Court below had rightly rejected the same on 26.7.2011. The defendants-respondents should have filed a civil appeal under Section 96 C.P.C. but instead preferred an application which was registered as misc. case No.64 of 2010, which has been allowed by the trial Court recalling the judgment and decree dated 26.8.2010 and the revision against the said order has been dismissed. 4. Both the Courts below fell in error in recalling the order dated 26.8.2010 as the defendants had remedy of filing an appeal under Section 96 C.P.C. and the said recall application was not maintainable once the application under Order IX, Rule 13 C.P.C. was rejected. 5. Considering the facts and circumstances of the case, the order impugned dated 08.11.2013 passed by Civil Judge (Junior Division) Kushinagar at Padrauna in Misc. Case No.64 of 2010 (Mahender vs. Lakshuman) as well as order dated 29.01.2016 passed by Additional District Judge, Court No.5, Kushinagar at Padrauna in Civil Revision No.4 of 2014 (Lakshuman vs. Mahender) are set aside. 6. The writ petition stands allowed. Order Date :- 6.5.2025 Kushal Digitally signed by :- KUSHAL AGRAWAL High Court of Judicature at Allahabad