SAVITRI DEVI Vs. GAYATRI DEVI

JUDGEMENT

(1.) ALL the six petitions have been preferred invoking the jurisdiction of this court under Article 227 of the Constitution of India with respect to the order of the first appellate court on an application under Order 41rule 27 of the CPC. In all the cases, the application under Order 41rule 27 of the CPC was disposed of by the first appellate court before taking up the appeal for hearing, leading to the grievance being made with respect thereto before this court as aforesaid, even while the appeals in each of the cases are still pending for consideration before the first appellate court. This court being prima facie of the view that a challenge to the decision, if any, on an application under Order 41 Rule 27 of the CPC taken up prior to the hearing of the appeal, is not entertainable before this court, put the said question to the counsels as and when each of the said matters came up before this court. Attention of the counsels was also drawn by this court to the judgments of the Supreme Court in Gurdev Singh Vs. Mehnga Ram air 1997 SC 3572 and in Mahavir Singh Vs. Naresh Chandra (2001) 1 SCC 309. The common questions as to the very maintainability of the petition being involved in all matters, the same were taken up for hearing together, only qua the question of maintainability and the counsels in all the matters have been heard on that aspect.

(2.) THE Supreme Court in Gurdev Singh (supra) was concerned with the order made by the High Court in exercise of its revisional jurisdiction under Section 115 of the CPC and the order of the first appellate court on an application under Order 41 Rule 27 of the CPC made before the hearing of the appeal. The Supreme Court held as under:-

(3.) IN Mahavir Singh (supra) also the order of the High Court in the exercise of revisional jurisdiction, setting aside the order of the first appellate court dismissing the application under Order 41 Rule 27 of the CPC and allowing the said application while the appeal was still pending before the first appellate court was for consideration. The Supreme Court held