Mst. FATIMA ZOHRA Versus SALIMUDDIN

ABDUL SHAKURUL SALAM, J.‑‑ The case of the appellants is that the appellant No. 1 filed a Mukhbari application on 15‑2‑1974 alleging that Salimuddin, respondent No. 1 held excess allotment. The application was accepted ex parte on 14‑9‑1977 and the land to the extent of 219 units was cancelled in 2 villages, Kot Lakhpat 14 kanals 6 marlas and Bhekewal 8 kanals. It was allotted in favour of the appellant No. 1. The land in village Kot Lakhpat was purchased by the appellant No. 2. On 3‑1‑1978, Salimuddin, respondent No. 1 filed an application under Order IX, Rule 17, C.P.C. for setting aside the ex parte order on which the respondent No. 5, the Settlement Commissioner, issued a notice to the appellants and suspended the operation of the ex parte order dated 14‑9‑1977. This is vide order dated 3‑1‑1978. This was challenged by the appellants in Writ Petition No. 596‑R of 1978 which had been dismissed in limine by a learned Single Judge on 17‑5‑1978. Hence this Intra‑Court Appeal.

2. Learned counsel for the appellants had vehemently contended that after all efforts to serve the respondent No. 1 had failed the order dated 14‑9‑1977 was passed ex parte. After the period of limitation of one month, the respondent had no right to file an application for setting aside that order and the respondent No. 5 could not for the same reason suspend the operation of the earlier order dated 14‑9‑1977 on 3‑1‑1978.

3. Learned counsel for the respondents has opposed the appeal and submitted that against the issuance of notice the writ petition was not competent and was rightly dismissed by the learned Single Judge.

4. After hearing the learned counsel for the parties, we are quite clear that against the interim order of the learned Settlement Commissioner dated 3‑1‑1978, whereby the appellants had been issued a notice on the application of the respondent No. 1 for setting aside the ex parte order, no writ petition could be maintained. Whatever pleas the appellants may have in opposition to the application .of the respondent, they can take the same before the Authority who is dealing with that application. The appeal is without merits and is accordingly dismissed with costs.

M.Y.H./103/L

I.C.A. dismissed.