MALLIKARJUN SADASHIV HONRAO Vs. SURATRAM SHIVLAL

JUDGEMENT

(1.) THIS revisional application is against an order granting review. The short facts relevant for the present purposes are as follows. The petitioner filed an application B. A. D. Rules No. 1208 of 1950 for adjustment of his debts alleging that the transaction made in favour of the respondents in 1899 was a mortgage and that it was subsisting. The respondents resisted the proceeding. The trial Court found that the transaction was not a mortgage and, therefore, dismissed the application. The petitioner filed an appeal to the District Court being Appeal No. 10 of 1956, which the District Court decided on June 20, 1959. The District Court held that the transaction was a mortgage. Accordingly, it made an award adjusting the debts. The respondents filed a revisional application to this Court being Revisional Application No. 1502 of 1959, which was decided by me on April 19, 1961. I discharged the rule. At the time of the arguments in the revisional application. the learned counsel appearing on behalf of the respondents tried to produce a decree in an old suit being Suit No. 277 of 1900. The reason for producing the decree was that it was the respondents' case that the equity of redemption of the petitioner was exhausted as the property was already disposed of and purchased by the respondents. In support, the respondents-produced a Lilav Patti only in the trial court. The learned trial Judge had no occasion to consider the Lilav Petti for the reason that he held that the original transaction was in the nature of sale. The appellate Court, however, came to the conclusion that the original transaction was in the nature of mortgage. He then proceeded to consider the alternative case that the respondents became entitled to the equity of redemption in execution proceedings. The learned Judge held that the Lilav Patti did not give a correct idea as to what was the nature of the suit and who the other defendants in the proceedings were. He, therefore, did not accept the respondents' case. It may also be mentioned that though it was the respondents' allegation that the property was sold in execution of the decree, they did not and could not produce any sale certificate of the Court, In the revisional application the learned counsel relied upon the decree to show the nature of the suit, the names of the parties and the ultimate decree made by the Court and on the basis of that decree he tried to contend that the Lilav Patti must be accepted and also the case of the respondents. I did not permit him to produce the said decree on the ground that additional evidence could not be received in a second appeal much less in a revisional application. I made a passing observation as below:. . . . . He might have, if so advised, been able to make an application for review in the lower Court. This Court cannot receive fresh evidence. "

(2.) THE respondents made a fruitless effort to approach the Supreme Court by applying for special leave. I understand that that application was dismissed in December 1961. The respondents thereafter filed a review application in the Court of the District Judge along with an application for condonation of delay. The learned Assistant Judge condoned the delay and permitted the review application to be filed. The petitioner came to this Court by way of revision against that order, but having regard to the reasons given by the learned Judge, I rejected the same. Thereafter, the learned Judge heard the application. He granted review and set aside the original judgment and dismissed the petitioner's application in toto. The petitioner now comes to this Court.

(3.) IT is argued by Mr. Lalit, for the petitioner, that after the High Court decided the revisional application on merits, it would be impossible for the District Court to review its earlier order. Secondly, the conditions for the exercise of jurisdiction under Order 47, Rule 1 of the Code of Civil Procedure were not satisfied. Thirdly, he argued that even if it had the power of review, the decree refers only to a few of the lands and not all the five lands covered by the original application and the learned Judge, therefore, was not right in dismissing the entire application of the petitioner. As Mr. Lalit succeeds on the first point, it is not necessary for me to go into the merits of the other points.