HARI GANU BHANDIRGE Vs. HARI GANU SHINDE

JUDGEMENT

(1.) This is an application for review of the order of dismissal under Order XLI, Rule 11, Civil Procedure Code, by Mr. Justice Crump, of Second Appeal 459 of 1927, on September 17, 1927, preferred by the petitioner, original defendant No. 4, Hari Ganu Bhandirge.

(2.) The contest in the original suit was as regards the property of one Mukundji. The petitioner claimed to be the daughter's son and heir of Mukundji The plaintiffs Nos. 1 and 2 opponents claimed to be the nearest reversioners. The plaintiffs succeeded in both the lower Courts. Bach party set up a different genealogy. The plaintiffs genealogy was accepted in both the lower Courts and they succeeded. The defendants appeal to this Court was dismissed under Order XLI, Rule 11, Civil Procedure Code. The present application purports to be made under Order XLVII, Rule 1, Civil Procedure Code, on the ground stated in para, 7 of the petition that one Raghunath Moreshwar Kulkarni banded over about December 16, 1927, a third genealogy, which was a new and important matter, which he could not, by the exercise of ordinary diligence, have produced in proper time, Accordingly, I am asked to review the order of Mr. Justice Crump.

(3.) A preliminary objection is taken for the plaintiffs-Opponents that such an application for review does not lie. It is argued for the opponents that on the consistent practice of this Court is enunciated by this High Court from 1872 in Nanabhai Vallabh das V/s. Nathabhai Haribhai (1872) 9 B.H.C.R. 89 down to Shivappa V/s. Ramchandra (1921) I.L.R. 46 Bom. 1, s. c. 23 Bom. L.R. 597, and the decision of Mr. Justice Fawcett in Narhar Venktji Rajadhyakaha V/s. Raghunath Ramchandra (1927) Civil Appln. No. 630 of 1924, decided by Fawcett J. on February 28, 1927, no such application can be entertained. For the petitioner reliance is placed on the observations of Shah J. in Shivappa V/s. Ramchandra (1921) I.L.R. Bom. 1, 6, 8, s. c. 23 Bom. L.R. 597, and on the indulgence granted to the petitioner in oases such as Narayan bin Sidoji V/s. Davudbhai valad Fatebhai (1872) 9 B.H.C.R. 238, where although his appeal in this Court had been admitted, he was allowed to withdraw it in order to prefer an application for review in the District Court.