ACHYUT VISHNU PATANKAR Vs. TAPIBAI KRISHNAJI JOSHI

JUDGEMENT

(1.) This appeal raises a very curious point with regard to the procedure to be followed in cases where a review has been granted of the judgment of a Court, and the party obtaining the review has taken no steps to proceed further in the matter. There seems to be no authority on the point. The history of the case is as follows. The plaintiff filed a suit in the Subordinate Judge's Court for possession of certain property and obtained a decree. On appeal to the District Court, the decree of the lower Court was set aside and the plaintiff's suit was dismissed with costs. The plaintiff then applied for a review of the judgment of the appellate Court, and, on February 19, 1920, the District Judge granted the application. In the judgment as first written the District Judge not only granted the review application, but confirmed the decree of the lower Court by setting aside the decree of the appellate Court. But evidently it was pointed put to him that this was not the correct course to follow, for the words "Decree of the lower Court is confirmed" were struck out; and the learned Judge added "I shall rehear the case on its merits. Both sides to argue the appeal on its merits over again." That was the proper order to make.

(2.) The real question is whether, when a review of a judgment has been ordered, the judgment is set aside or only held in suspense until the case has been reheard. Although it is not material for the purpose of this judgment, I may mention that defendant No. 2 appealed against the order granting a review to the High Court. That appeal was unsuccessful.

(3.) On September 17, 1921, the plaintiff died, and, on April 28, 1922, as his heirs had not been brought on the record for about eighteen months, when an application was made to substitute the heirs of the plaintiff, the Judge considered that the appeal had abated. If that order were correct, it follows that the appellate Court's order dismissing the plaintiff's suit would disappear, and the decree of the lower Court would be restored. We think that the order made by the District Judge on April 28, 1922, directing that the appeal abated was wrong. The effect of the review order was not to restore the decree of the trial Court but to hold in suspense the decree of the appellate Court until it had been decided whether it should stand or not. Therefore the death of the plaintiff-respondent could not in any way affect the status of the appellate decree.