KALE GOWDA Vs. AKKAYYAMMA

JUDGEMENT

(1.) This revision petition under S.I 15 CPC, raises the question that, when an appeal is dismissed as withdrawn by the Appellate Court on a motion made by the party concerned under Or.23, Rule 1 CPC, can the decree of of the trial Court be said to have merged with the decree of the appellate Court, and if so, should an application for amendment of the judgment and decree passed by the trial Court be made only to the appellate Court? The decision of this revision petition depends upon the answer to the said question, and it arises in the following circumstances:

(2.) The petitioner filed O.S. No.25 of 1964 on the file of the Civil Judge at Kolar claiming to be the adopted, son of one Chikkasomegowd'a to whom the suit properties belonged. His case was that chikkasomegoweds (his grand-father) "took him in adoption and under a registered will dated 30-10-1948 executed by him bequeahed the suit properties in his favour and named M. Gangappa, the first defendant in the suit as Executor of the Will to manage the, suit properties during his (petitioner's) minority. It appears the said Gangappa came into, possession of the suit properties and mortgaged some of them, in favour of the third respondent Duggegowda. The petitioner, after he attained majority, brought the, said suit, for various reliefs. Having held that the aforementioned Will was valid, the petitioner was declared to be the owner of the suit properties and was also held entitled to recover possession of the suit properties which were, then in the possession of a, receiver appointed in some other proceeding. However, his case, that the mortgage created by M. Gangappa in favour of the third respondent was not binding on him was not Accepted, and it was held that the, same was binding on him.

(3.) Despite hoding that the petitioner was entitled to recover possession of the suit properties while dealing with Issue No.5, there was no direction to that effect either in the, order portion of the judgment or in the preliminary decree. Therefore, the petitioner filed an application I.A. No.18 on 19-12-1966 under Ss. 151, 152 and 153 CPC for amendment of the judgment and decree by incorporating the said relief therein; again on 6-1-1973 he filed another application I.A.No.24 with a similar prayer. It may also be mentioned here) that the said Gangappa had also filed an appea to this Court-RFA No.29|1967-against the judgment and decree in that suit and the petitioner had a,lso filed cross-objeections, and both the appeal and the cross-objections were dismissed as withdrawn by this Court on 10-11-1970.