KUTUBUDDIN SARFUDDIN MUNSHI Vs. SHRIMATIBEN INDUPRASAD

JUDGEMENT

(1.) This revision application under sec. 115 of the Civil Procedure Code deals with an interesting question of law which so far has not arisen before any Court in India as the painstaking advocates appearing for both the sides declared before me.

(2.) A few facts require to be stated. The present opponents nos. 1 to 6 who are the heirs of one Induprasad Devshanker Bhatt had filed the Civil Suit No. 2119 of 1953 in the Court of the then Civil Judge (JD) at Ahmedabad against some persons including the present applicants imple- aded as defendants nos. 5 and 6 for redemption of four agricultural lands bearing survey nos. 131 133 134 and 135 of village Ghodasar in Ahmedabad District on the basis of the registered mortgage Exhibit 145 in the suit being dated 17/09/1936 for the sum of Rs. 3 0 which were borrowed by the mortgagors with interest at the rate of one per cent per month with an express promise to pay the interest every month and had also put these lands into the possession of the mortgagees with the right to the mortgagees to put the mortgaged property to sale in order to satisfy the principal amounts as well as the amount of inte- rest. The usufruct was permitted to be appropriated first towards interest amount and then towards the principal amount if it was available. The said suit ultimately had gone to the Court of the Civil Judge (SD) Narol where it came to be registered as the Regular Civil Suit No. 158 of 1971. The litigation had come up to this High Court in the form of the Second Appeal No. 745 of 1961 but it is no longer in controversy before me that the only field that was held to be redeemable was survey no 131. It is an admitted position that the decree for redemption under order 34 Rule 7 of the Civil Procedure Code was directed to be drawn only in respect of the survey no. 131. The copy of the judgment of this High Court was made available to me at the time of hearing of this civil revision appli- cation and I reproduce therefrom below the operative part:

(3.) After the above judgment dated 7/07/1970 had come to be passed by the Division Bench of this Court speaking through S. N. Sheth J. sitting with D. P. Desai J. the matter went to the Civil Judge (SD) Narol. Then the commissioner was appointed again for taking accounts after the earlier report of his had been set at naught. Then the two applications Exhibits 300 and 308 came to be filed on behalf of the plaintiff no. 1s heirs and also by the plaintiff no. 2 declaring that they did not want to proceed with the suit and that they were withdrawing the suit. The defendants nos. 5 and 6 strenuously objected to this. The learned Trial Judge however by his order impugned in this revision application being dated 29-9-1979 allowed the plaintiffs to withdraw the suit obviously unconditionally as he thought it was plaintiffs right to withdraw their suit at their sweet will. It is against this order that the present revision application has been filed by invoking sec. 115 of the Civil Procedure Code by the original defendants nos. 5 and 6 on the ground that the learned Trial Judge had no jurisdiction at law to permit the plaintiffs to withdraw their suit at this stage so as to treat the suit as disposed of for all purposes.