Neutral Citation No. - 2025:AHC:122689 Court No. - 49 Case :- WRIT - B No. - 2185 of 2025 Petitioner :- Kusumlata and 6 others Respondent :- State of U.P. and 9 others Counsel for Petitioner :- Harish Chandra Singh,Vijay Kant Shukla Counsel for Respondent :- C.S.C.,M J Akhtar,Sunil Kumar Singh Hon'ble Kshitij Shailendra,J. 1. Heard Shri Harish Chandra Singh, learned counsel for the petitioners; learned Standing Counsel for the State-respondents and Shri V.M. Zaidi, learned Senior Counsel assisted by Shri Shahzad Alam for private respondents. 2. At the very outset, a preliminary objection has been raised by Shri Zaidi as regards maintainability of the present writ petition. 3. Submission is that a preliminary decree as well as final decree have been prepared in a suit for division of holdings under Section 116 of the U.P. Revenue Code, 2006 (in short 'the Code of 2006'), however, neither the preliminary decree nor the final decree has been challenged by the petitioners by filing statutory appeal under Section 207 of the Code of 2006, rather recourse to proceedings which were not maintainable, i.e. by way of revision before the Board of Revenue was taken. 4. Meeting this submission, learned counsel for the petitioners submits that a suit for division of holdings was filed on 16.02.2024 and was decided ex-parte on 28.03.2024 without issuing notices to the defendants (petitioners). Challenging the said ex-parte decision, a recall application was filed and order dated 28.03.2024 decreeing the suit was also challenged directly before the Board of Revenue where an interim order was passed. Challenging the said order, the private respondents filed Writ B No.4293 of 2024 (Pushpendra and 5 others vs. State of U.P. and 15 others) wherein objection was raised regarding maintainability of revision before the Board of Revenue. The said writ petition was disposed of by order dated 05.12.2024 with an observation that the Board of Revenue will hear the revision on the issue of maintainability also and its legal consequences will follow. 5. Submission is that instead of ensuring compliance of the order of this Court, the Board of Revenue has decided the matter on merits and dismissed the same by order dated 07.05.2025 and, therefore, the present writ petition has been filed. 6. Having heard learned counsel for the parties, I find that two remedies were availed by the petitioners against the order dated 28.03.2024; i.e. one in the form of recall application in terms of Section 209(h) of the Code, 2006 and the other by way of revision under section 210 thereof. 7. The Board of Revenue, while dismissing the revision on merits, has observed that order dated 28.03.2024 deciding the suit was not ex-parte, rather the petitioners who were defendants in the said proceedings, had engaged one Lokesh Kumar and Sanjeev Kumar Raghav as their Advocates who had filed Vakalatnama, respectively on 16.02.2024 and 05.03.2024 and, therefore, the judgement was not ex-parte. 8. The Court has perused the recall application appended at page 85 of the paper book, in which the petitioners had stated that they had engaged Shri Sanjeev Kumar Raghav as their Advocate, however, judgement was pronounced in absence of written statement. A prayer was made to recall the order dated 28.03.2024 and provide an opportunity to file written statement. 9. A bare perusal of the order dated 28.03.2024 indicates that it is not mentioned therein that the judgement was ex-parte, probably for the reason that there was representation made by both the parties before the Sub Divisional Officer. In this background, whether the provisions of Section 209(h) in terms of recall were rightly invoked or not, is a matter before this Court but the Court refrains itself from making any observation in that regard in view of the fact that, in the facts of the case, by-passing a statutory remedy of appeal under Section 207 and, then, under Section 208 by the parties aggrieved, does not appear to be appropriate. 10. Though the Board of Revenue has also observed that the recall application has been rejected on 22.05.2024, the situation is that during pendency of the proceedings even a final decree has been prepared by the concerned court. 11. A bare perusal of Section 206 of the Code reveals that appeal lies against a final order or decree passed in any suit. A decree includes preliminary as well as final decree. 12. In view of the aforesaid discussion, particularly nature of the order dated 28.03.2024 coupled with the fact that no discussion was made by the Board of Revenue regarding maintainability of the revision in view of pendency of/decision in recall application, the findings recorded by the Board of Revenue on merits of this case would prejudice the case of the petitioners, in case statutory appeal is filed. 13. Considering the peculiar facts of the case, this writ petition is disposed of with the following observations and directions:- (i). The petitioners are permitted to avail statutory remedy of appeal under Section 207 of the Code, 2006; (ii). In case appeal is filed within the period of one month from today, the same shall be registered and shall not be dismissed on the ground of limitation, inasmuch as time has been consumed in proceedings before the Board of Revenue and this Court and, therefore, the petitioners are held entitled to benefit of Section 14 of the Limitation Act, 1963; (iii). The appeal shall be registered and shall be decided in accordance with law after providing full opportunity of hearing to the parties within six months after the date of this institution; (iv). Any observation made by the Board of Revenue in the order impugned would not come in the way of the appellate authority/court to deal with appeal on its own merits. Order Date :- 25.7.2025 Jyotsana Digitally signed by :- JYOTSANA SINGH High Court of Judicature at Allahabad