MOHAN SINGH Vs. NIRMALA SONI

JUDGEMENT

(1.) The suit of the appellants was decreed against which the first appeal was filed, which was dismissed. Thereafter, the application for review was moved, which was allowed and the appeal was also allowed by order dated 16.8.2002. Against that judgment, the present second appeal has been filed.

(2.) A preliminary objection has been raised by Sri Santosh Kumar, learned counsel for the respondents that the second appeal is not maintainable and Misc. Appeal should have been filed under clause (w) of Rule 1 of Order 43 C.P.C.

(3.) As against this it has been argued by Sri Murlidhar, learned Senior Advocate that in the Misc. appeal under the above provision the correctness of order of review alone can be challenged. That as by the same order, the first appeal has been allowed and therefore, the second appeal can be filed according to the provisions of section 100 of C.P.C. In which the correctness of the decree can also be challenged and, therefore, have wider scope.