HASMUKHBHAI MOTILAL Vs. ANANDIBEN WIDOW HARILAL BAROT

JUDGEMENT

(1.) The matter was called out for hearing in the first round, second round and lastly in the third round. None put appearance on behalf of the parties. Perused the Special Civil Application. The facts of the case are that the first respondent-Anandiben, widow of Harilal-filed Civil Suit No. 147 of 1975 in the Court of Civil Judge (J.D.) at Modasa for dissolution of a partnership firm constituted by the petitioners and the respondents herein for the purpose of running cinema theatre known as Apsara Cinema. The aforesaid suit came to be dismissed by the Trial Court on the ground that the partnership was itself illegal and void. Respondent No. 1-plaintiff preferred appeal against the aforesaid judgment and decree, being Civil Appeal No. 45/79, in the Court of District Judge at Himatnagar. In the first appeal, respondents No. 1 and 2 filed consent terms under which respondent No. 2 agreed to pay a sum of Rs. 62,000/- to respondent No. 1 with interest in the manner provided therien. The petitioners who were defendants No. 2 and 3 in the suit were not served with copy of the consent terms before the appellate Court. Petitioner No. 1 had given application on 30th November, 1979 for time to engage advocate. Petitioner No. 2 engaged advocate. Application Exh. 22 was given on April 18, 1980 by the plaintiff- respondent No. 1 which was served only upon the advocate of the first respondent, by which the petitioners herein were ordered to be deleted from the record of the suit. Grievance was made by the petitioners that copy of the said application was not served upon the first petitioner or upon second petitioner or advocate of the second petitioner. On the same day consent terms at Exh. 23 were filed by the respondents and the same were accepted and decree has been passed accordingly.

(2.) The petitioners had filed second appeal (Stamp) No. 18712/80 before this Court on 18th September, 1980. As per the petitioners' case, because second appeal has been filed after expiry of period of limitation Civil Application No. 235 of 1981 was filed by the petitioners in the second appeal for condonation of delay in filing the second appeal. That Civil Application came to be withdrawn and the petitioners have filed this petition under Art. 227 of the Constitution of India, and prayer has been made for setting aside the decree passed on the consent terms by the Appellate Court.

(3.) From the contents of this Special Civil Application I do not find any case in favour of the petitioners. It is a matter arising out of civil suit and the second appeal which has been filed by the petitioners against the decree passed in terms of the consent terms has also been dismissed. It is not in dispute that the second appeal has been filed bey and the period of limitation. The application which has been filed by the petitioners for condonation of delay in filing second appeal has been withdrawn. It is settled law that in the matter of civil suit remedy as available under the Civil Procedure Code is to be resorted to. The petitioners have availed of the remedy of appeal which was available to them, and the appeal has also been dismissed. Once second appeal has been dismissed, this Special Civil Application under Art. 227 of the Constitution of India is not maintainable. The petitioners cannot be permitted to avail of the remedy under Art. 227 of the Constitution of India when regular remedy under CPC has been availed of in which they failed. Judgment and decree of the first appellate Judge has merged in the order of this Court dismissing the second appeal In case this-petition is entertained, this Court will be reopening a matter which has attained finality.