MOHAMMAD YUSUF Vs. RAJA RAM

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiffs-appellants in the Court of the Assistant Collector of Saharanpur for the recovery of arrears of rent. The claim was partially decreed on the 14th February 1914. The plaintiffs preferred an appeal to the Court of the District Judge on the 17th March 1914. During the pendency of the appeal in the District Judge s Court the plaintiffs filed an application for review of judgment on the 3rd April 1914 to the first Court. The application was entertained and the case was re-tried and a decree was passed in favour of the plaintiffs on the 29th une 1914. On the 7th July 1914 the plaintiffs withdrew their appeal. The defendants preferred an appeal from the decree of the 29th June 1914, on the ground among others that the first Court baa no right to entertain the application for review. The learned Judge accepted the appeal and set aside the decree of the 29th June 1914. The plaintiffs in their second appeal to this Court contend that the defendants having failed to appeal from the order of the first Court granting the application for review, they cannot challenge the decree which was passed subsequently on the 29th June 1914. The contention has no force in view of the provisions of Order XLVII, Rule 7. Under Rule 7, Order XLVII, an aggrieved party may appeal either from the order granting the application for review or from the final decree passed subsequently. In the present case the defendants chose to wait and appeal from the decree that was passed after the application for review bad been allowed. The next contention for the plaintiffs-appellants is that the first Court could entertain their application for review as the appeal by the plaintiffs, though pending at the time, was subsequently withdrawn. I do not thick that the contention is correct. According to Order XLVII, Rule 1, "any person considering himself aggrieved by a decretal order from which an appeal is allowed but from which no appeal has been preferred may apply for review." In the present case the application for review was filed by the plaintiffs after they had preferred an appeal from the decree to the Court of the District Judge. The application for review was clearly not entertainable by the first Court. The last contention for the appellants is that the ground upon which the lower Appellate Court has disposed of the appeal was not taken by the defendants in their memorandum of appeal. The learned Judge has decided the appeal on the ground that the application for review was not maintainable, in view of the fact that an appeal by the plaintiffs had been preferred and was pending. THIS ground was taken by the defendants in their memorandum of appeal in paragraph 5. I dismiss the appeal with costs.