Neutral Citation No. - 2025:AHC:135359 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 6637 of 2017 Petitioner :- Brijpal Singh Respondent :- Pratap Singh And Another Counsel for Petitioner :- Pramod Srivastava,Rajjan Singh,Virendra Kumar Counsel for Respondent :- Aman Ahsan,Phool Singh Yadav,Shivam Yadav Hon'ble Manish Kumar Nigam,J. 1. Heard learned counsel for the parties and perused the record. 2. This petition has been filed challenging the order dated 14.12.2015 by which application filed by the defendant-petitioner under Order 9 Rule 13 for recalling the ex-parte decree dated 30.8.2011 has been rejected by the court below and misc. appeal filed by the petitioner has also been rejected by the order dated 16.8.2017. 3. Hence the present petition. 4. Contention of learned counsel for the petitioner is that petitioner has no knowledge about the pendency of the suit and petitioner was never served, therefore he could not appear before the court below and contest the suit. The application under Order 9 Rule 13 has been rejected on the ground by the court below that during pendency of the suit, the defendant appeared through counsel and filed his vakalatnama before the trial court which has been mentioned in the order dated 7.3.2003 passed by the trial court and has also moved an application being Paper No.10 Ga and 12 Ga. The aforesaid facts have not been explained by the petitioner in his application under Order 9 Rule 13. Against the order dated 14.12.2015, the petitioner preferred an appeal. Copy of memo of appeal has been annexed as Annexure No.6 which is at Page 89 of the paper book wherein it has been admitted by learned counsel for the petitioner, Sri S.K. Srivastava that he appeared on 7.3.2003 before the court below and filed Paper No.10 Ga, 11 Ga and 12 Ga. It has been further stated in memo of appeal that several dates were fixed and it was noted that written statement was not filed but why copy of the plaint was not delivered to the defendants has not explained by the court below. Learned counsel appearing on behalf of the appellant before the court below has also admitted that he has filed an application Paper No.13 Ga for dismissing the suit on which no orders were passed. It has also been mentioned by learned counsel for the petitioner before the appellate court that no order was passed to proceed ex-parte. The appeal filed by the petitioner has also been dismissed by the appellate court. 5. It has been pointed out by learned counsel for the respondents that in paragraph 9 of the writ petition again filing of Vakalatnama along with Paper No.10Ga, 11Ga and 12 Ga on 7.3.2003 before the trial court has been admitted by the petitioner. There is no explanation as to why the petitioner did not contest the suit before the court below as he has already appeared in the suit and filed various applications. Contention of learned counsel for the petitioner that order to proceed ex-parte was not passed by trial court is also incorrect as from the order dated 27.1.2005, it is apparent that order to proceed ex-parte has been passed against the defendants. 6. Learned counsel for the petitioner contended that the decree was void and therefore application under Order 9 Rule 13 ought to have been allowed. Before this Court, only the orders passed on application under Order 9 Rule 13 are under challenged and not the decree. Secondly, while deciding the application under Order 9 Rule 13, the court below is not required to look into the validity or correctness of the decree. The only question to be examined is under what circumstances the defendants were not served and here it is admitted position that petitioner has been served in the suit and despite service he has not contested in the matter. 7. In my view, no illegality has been committed by the court in passing the order impugned 8. Accordingly, the writ petition is dismissed. 9. In case, petitioner is aggrieved by the decree which according to the petitioner was not in accordance with law, the petitioner can file an appeal against the ex-parte decree, if so advised. Order Date :- 11.8.2025 S. Singh (Manish Kumar Nigam, J.) Digitally signed by :- SAVITA SINGH High Court of Judicature at Allahabad