VASANT JAIWANTRAO MAHAJAN Vs. TUKARAM MAHADHAJI PATIL

JUDGEMENT

(1.) A decree passed in favour of one Tukaram and against defendants 2 and 3 was set aside as against defendant No. 3 only under O. 9, R, 13, Civil Procedure Code, by the Civil Judge, Yeotmal. But while setting waside the decree as against defendant No. 3 only, no order was passed as regards the decree as against the other defendants. Defendant No. 2 then made an application under Section 151, C. P. C. and also for review under Order 47, rule 1, to the successor of the Judge Mr. Kolhekar, held that the decree proceeded on the grounds common to defendants 2 and 3 and that it should have been set aside against all the defendants i.e. defendants 2 and 3, under the proviso to Order 9, rule 13, but he held that although the order pased by his predessor was contrary to the proviso, he had no juridication to correc that illegality on a review, because illegality of cause for review under O. 47, R. 1, C. P. C. He therefore rejected the application of defenant No. 2 who has now come in revision.

(2.) It is contended for the applicant that the view taken by the lower Court that this was not a good ground for review is wrong. He relies on Hari Sankar v. Anath Nath, AIR 1949 FC 106. He also supports the reasoning of the lower Court that in this case the original Judge who had set aside the decree should have set aside the decree against all the defendants 2 and 3 and not merely as against defendant No. 3 who had applied under O. 9 R. 13. The suit in which the decree came to be pased was filed by Tukuram against a firm defendant No. 1) consisting of its two partners defendants 2 and 3, alleging that the two partners, defendants 2 and 3, as partners of the firm defendant No. 1, had entered into a contract to plough 200 acres of plaintiff's land, and claimed damages for breach of the contract. No written statement was filed by defendant No. 1, but defendants w and 3 wwwwwwfiwled a written statement repudiating the claim of the plaintiff. Defandant No. 3 did not appear. A decree was passed for Rs. 2640/- against defendants 2 and 3. Defendant No. 2 led evidence but defendant No. 3 did not appear ont he date when the evidence was recorded. The Court passed a decree for Rs. 2640/- against defendants 2 and 3.

(3.) In my opinion, th etrial Court erred in its view that it had no powers to review the order passed by its predecessor in a case like this, but I differ from the view taken by it that this was a case in which the order passed by its predecessor should have been modified by setting aside the decree as against both the defendants and not merely as against defendant No. 3, who had applied under O. 9, R. 13. Their Lordships of the Federal Court held in AIR 1949 FC 106: