DHONDO KHANDO Vs. WAMAN BALWANT

JUDGEMENT

(1.) THIS is an appeal against an order passed by the District Judge of Belgaum in civil appeal No. 79 of 1939 confirming the order of the Second Class Subordinate Judge of Chikodi in an application under Section 47 of the Civil Procedure Code, in regular darkhast No. 377 of 1938. The circumstances that gave rise to this second appeal are as follows : One Balwant Sakharam Naik had filed regular suit No. 195 of 1928 against one Dhondo Khando Naik and two others for partition of his alleged half share in Revision Survey No. 23 of Chinchani, for mesne profits of Rs. 150 accrued due before the date of the suit and for future mesne profits from the date of the suit. The suit was dismissed with costs. He preferred appeal No. 315 of 1931 in the District Court of Belgaum against the decree passed by the Subordinate Judge of Chikodi. But pending the disposal of the appeal, Balwant Sakharam died. His two sons, Chintaman and Waman, were then brought on record as his legal representatives. The first appellate Court dismissed the appeal and confirmed the decree of the trial Court. Chintaman and Waman then preferred second appeal No. 611 of 1933 to the High Court. Pending the disposal of this appeal, Chintaman died on July 24, 1937. THIS fact, however, was not brought to the notice of the High Court, and Mr. Justice Sen on September 9, 1937, reversed the decree of the lower Courts and decreed the plaintiffs' suit with costs. The present darkhast was then filed by Waman and the son of Chintaman for partition of the suit property in accordance with the decree of the High Court.

(2.) THE judgment-debtor No. 1 then gave an application in which he contended that the decree passed by the High Court in the second appeal was a nullity inasmuch as the heir and legal representative of the deceased Chitaman had not been brought on record before the decree of the High Court was passed, and that, therefore, no execution of that decree could be taken out. He, therefore, prayed that the darkhast application be dismissed with costs.

(3.) ACCORDINGLY, civil application No. 82 of 1938 Was filed in this Court in which it was prayed that- the judgment be reviewed and vacated, and that the appeal be re-heard on the ground that the decree was void, either wholly or at least so far as appellant No. 1's interest was' concerned.