GAMBHIRMAL Vs. GYANCHAND

JUDGEMENT

(1.) THE petitioner Gambhirmal filed an appeal against the order of remand passed by the learned District Judge, Nagaur on 12th May 1945 which for reasons mentioned hereafter was treated as a revision and is being dealt with accordingly.

(2.) ONE Gyanchand filed a suit in the Court of Thikana Nimaj on 17th September 1943 on the allegation that a certain house and a Nohra situate at Papar were mortgaged with possession by his father Chandan Mal to Shobha Chand and Kalyan Chand in Section 1948 for RS. 500 and that Udai Chand defendant 1 was their sole heir and legal representative. It was alleged that the predecessor-in-title of Udaichand had submortgaged the properly to the ancestors of defendants 2 to 7 viz. , Simrathmal, Samirmal, Gambhirmal, Mt. Dhapi, Mt. Teenja and Manakchand, and by certain arrangements between the and defendants, the property was now in possession of Mt. Dhapi and Teeaja. It wag stated that as the defendants refused to redeem the property on tender being made to them, the plaintiff came to file this suit.

(3.) AS would be explained later, the amendment sought purported to substitute one cause of action for another and it was a substantial question in controversy between the parties whether the plaintiff was entitled to so change his cause of action as to enable him to abandon his previous suit and to give him a right of obtaining adjudication on a new claim. In my opinion, therefore the decision of the petition for amendment was a decision of a case within the meaning of Section 116 of the Code.