ZAKINABEN Vs. BABUBHAI ALIMOHMAD KAPADIA

JUDGEMENT

(1.) This revision, under Sec. 115 of the Code of Civil Procedure, has been filed against the order of the trial Court rejecting an application of the plaintiff-revisionist for consolidation of two Suit Nos. 64 of 1989 and 9 of 1977 pending in the Court of Civil Judge (S.D.). Navsari. The revision has not been admitted so far. Strangely enough this Court vide its order dated 27-7-1998 straightaway issued notice for final disposal of this revision. As such revision is taken up for final.

(2.) Learned Counsel for the parties have been heard. The revision has to be admitted. I do not find any force in the contention that an order under Sec. 151 of the Code of Civil Procedure being discretionary is not revisable. An order under Sec. 151 C.P.C. is not appealable hence revision is maintainable against such order,

(3.) Brief facts have not been narrated in the order under revision. However, from the Memo of revision the brief facts can be noted down as under : Civil Suit No. 64 of 1989 was filed by the father of the revisionist for recovery of possession of house No. 668 and in the alternative for recovery of Rs. 14,65,000.00 with agreed interest at the rate of 24% p.a. This house, according to the revisionist, was proposed to be purchased by the respondent Nos. 1 to 4 for a sum of Rs. 15 lacs. However, in order to avoid problems in the Income-tax Department two Agreement to sell were executed and a sum of Rs. 35.000.00 was paid on 23-5-1986. The remaining amount was not paid where after the father of the revisionist filed Suit No. 64 of 1989 for recovery of possession and in the alternative for recovery of Rs. 14,65,000.00 together with 24% p.a. interest. During pendency of the suit the father of the revisionists died, whereupon the revisionists were substituted as legal representatives of the deceased plaintiff.