MT PRABHAWATI KUAR Vs. PHULMANI BIBI

JUDGEMENT

(1.) The petitioner in these two applications in revision is the same, but the opposite parties are different. The husband of the petitioner executed two hathchitas on borrowing money from two persons who were or are represented by, the present opposite parties. After his death his property was partitioned and the widow obtained a share as her maintenance. After the partition had been completed the holder of the hathchitas instituted suits against the widow, the sons, the grandsons and the nephews of the borrower. The suit was dismissed against the widow who is the present petitioner, as the learned Subordinate Judge says: "as she was taken to be an unnecessary party." The suit was then decreed against the other defendants. The decree-holder applied to sell all the property of the joint family including property No. 2 allotted on partition to the widow.

(2.) She filed objections to the attachment and upon the rejection of her objections, she filed the present application. In respect of application No. 419 she also subsequently and as a precaution of safety filed Miscellaneous Appeal No. 292 of 1933. When the applications came on for hearing, Sir Sultan Ahmed took a preliminary objection that no application in civil revision lies. He pointed out that under the explanation to Section 47, Civil P.C., the petitioner as "a defendant against whom a suit has been dismissed" is a party to the suit for the purposes of Section 47 and as an appeal lies under section, an application in civil revision is not tenable. The point is hardly contested and must be sustained. Mr. S.M. Mullick then asks that Civil Revision No. 207, in which no miscellaneous appeal has been preferred be converted into an appeal.

(3.) On consideration of the case-law which has been set out, I should myself be inclined to allow this application. But if this be done, it is obvious that the two applications cannot be heard together as Miscellaneous Appeal No. 292 of 1933, which goes along with Civil Revision No. 419 is not yet ready; in fact, the date for the appearance of respondent, Ramsaran Lal, is to-morrow, though I understand that actually appearance has been entered to-day. In the circumstances, it is advisable that these applications and the appeal (or appeals if there is conversion of Civil Revision No. 207 into an appeal), be heard together. The valuation of the application in revision is given as Rs. 14,000 and the valuation of the appeal is given at Rupees 10,348-1-0.