MANOHAR BHIMA SIRVI Vs. GANGARAM VARMAJI TAMOLI

JUDGEMENT

(1.) This is an appeal by the legal representatives of one Bhima from the order of the first appellate court, allowing the appeal of the opposite party. That was from the order of the executing court allowing Bhima's representatives to execute the decree in a suit, passed by the first appellate court (District Judge, Mandleshwar) on the finding that the High Court's second appellate decree was not binding on these applicants, as the second appeal itself had abated as against Bhima, their predecessor in interest. The first appellate court's decision on this was that it could be considered only by the High Court before whom, it was alleged, that the appeal had abated, and not by the executing court which is competent only to execute the decree made finally in that litigation.

(2.) The relevant facts, which are complicated, can be summarised thus: Many years ago, one Ghisa Sirvi purchased certain lands, the identity of which is not in dispute, in a court-auction for a sum of Rs. 2025/-. He died leaving three sons, namely Sarat, Jiwa and Bhima and the widow, Navlibai. One Gangaram Tamoli brought a possessory suit against them and recovered possession of the property, his own allegation being that though Ghisa was the nominal purchaser with the sale certificate in his name, he was only a benamidar for Gangaram and it was Gangaram that continued in possession till dispossessed by the heirs of Ghisa. Any way, after the decision of the possessory suit, the heirs of Ghisa brought a regular title suit for a declaration of their title to the suit lands and restoration of possession (C. O. S. No. 28 of 1.944 before the Munsiff Burwaha). This suit was decreed in favour of the plaintiffs on 21-3-1946 and they obtained delivery of possession forthwith. Gangaram in his turn, filed an appeal (C. R. A. No. 101 of 1946 before the District Judge Mandleshwar). The appeal was allowed in part in the sense that the declaration and possession in favour of the plaintiffs was now made conditional to their repayment to Gangaram a sum of Rs. 2025/- which the first appellate court had found had been contributed by him tp the auction purchase by Ghisa. From this again, both the parties went to the High Court in second appeal. The plaintiffs, that is, the heirs of Ghisa (including Bhima) filed the second appeal (No. 9 of 1948, which was subsequently renumbered as 47 of 1948 in the Madhya Bharat High Court) and Gangaram a cross-objection, the longer claiming that the condition of payment of Rs. 2025/- should be cancelled, and the latter that he should be allowed to keep the property and the suit should be dismissed in toto.

(3.) The appeal and the cross-objection came up for hearing on 4-10-1948, and again on 22-10-1948 and were ultimately disposed of by the High Court on 2510-1948 allowing the cross objection and dismissing the appeal of the plaintiff and ordering the dismissal of the suit in toto. There was a prayer by the appellants, that is, the plaintiffs' counsel for a rehearing and the entire matter was reheard and ultimately disposed of on 31-3-1949 with the same results, that is, the total dismissal of the suit.