DEVJI VELA Vs. DEVJI MANJI DETROJA

JUDGEMENT

(1.) THE present Second Appeal has been filed under Section 100 of the Civil Procedure Code by the appellant-original defendant challenging the order dated 05.08.1980 passed by the Learned Extra Assistant Judge, Junagadh District, Junagadh in Regular Civil Appeal No.48 of 1978.

(2.) THE facts of the case briefly summarized are that the respondents-original plaintiffs filed Regular Civil Suit No.25 of 1977 before the Court of the Learned Civil Judge (JD) at Visavadar for redemption of the mortgaged land known as Dungarwala land situated in the sim of Village : Nani Pindabai, Taluka : Visavadar. Suit of the plaintiffs was dismissed vide Judgment and Decree dated 31st March, 1978 by the Learned Civil Judge (JD), Visavadar. Regular Civil Appeal No.48 of 1978 came to be preferred challenging the said Judgment and Decree on the grounds stated in the Appeal, which came to be allowed by setting aside the Judgment and Decree passed by the trial Court and also passed preliminary decree as stated in detail in the impugned Judgment.

(3.) SIMILARLY, referring to the judgment of the Hon'ble Apex Court reported in AIR 1997 SC 1906 in case of Major Singh V/s Rattan Singh (Dead) by Lrs. and Ors., it was stated that it has been observed that if the evidence is rejected then also the discretion under Section 100 of the Civil Procedure Code in Second Appeal can be exercised.