ABDUL AZIZ Vs. JAI RAM

JUDGEMENT

(1.) This is an application by two of the defts. Abdul Aziz & Shafkat Ali, under o. 47, Rule 1, Civil P. C., for review of the judgment of my learned predecessor-in office dated 27-4-1950.

(2.) Two sales of the same property were, one after the other made by the widows of one Banku, one in Samvat 1997 in favour of Basantu & the other in Samvat 2003 in favour of Kutubuddin. Basantu having died meanwhile, his minor sona Jai Bam & Dhania filed a suit against Kutubuddin in the Court of the Subordinate Judge of Suket for possession of the property on foot of the prior sale in favour of their father. Kutubuddin's defence, inter alia, was that the sale in favour of Basantu was void as he was a non. agriculturist. It is common ground that under the law of the lard applicable in Suket a sale of agricultural land by an agriculturist to, a con-agriculturist would be void. This contention was repelled by the trial Court & the suit was decreed on 23-8-1948 Kutubuddin went up in appeal to the Dist. J. of Mandi who by his judgment dated 7-5-1949 allowed the appeal & dismissed the suit on the ground that the plffs. had failed to prove that Basantu was an agriculturist. The plffs. thereupon came up in second appeal to this Court, & as Kutubuddin has died meanwhile they impleaded his five sons as respondents. My learned pre-decessor-in office allowed the appeal, set aside the judgment & decree of the Dist. J. & restored the judgment & decree of the Subordinate Judge holding that the sale in favour of Basantu did not come under the mischief of the said law of Suket inasmuch as he was not a non-agriculturist. It is this judgment which is now sought to be reviewed by two of the sons of Kutubuddin. The remaining three sons have been impleaded as pro forma, respondents, & they have not put in appearance despite notice.

(3.) There was a preliminary objection raised by the learned counsel for the plffs. respondents, namely, that the application for review was time-barred. The application was no doubt filed beyond the period of ninety days prescribed by Article 173 of the Limitation Act, but it would be within time if under Section 12 (2), Limitation Act, benefit is given to the applicants of the time taken in obtaining a copy of the decree of this Court. It was however, contended on behalf of the respondents that it is not necessary that an application for review should be accompanied by a copy of the judgment or decree sought to be reviewed. That is a deba table point. But even if it be conceded that the filing of a copy of the decree was not necessary, the applicants would be entitled to the benefit of Section 12 (2), Limitation Act, if they have actually obtained & filed such a copy. Gauri Shankar v. Kashi Nath, 56 ALL. 591, The preliminary objection is therefore disallowed.