PAKKIRI MUHAMMAD ROWTHER Vs. LSWAMINATHA MUDALIAR

JUDGEMENT

(1.) Pandrang Row, J., dismissed the second appeal, giving effect to an objection, in limine, that the decree from which it was filed, was superseded by a fresh decree that was passed subsequent to the filing of the appeal. The question to decide is whether there was in law a new decree passed, which had the effect of discharging the original decree. We regret to say we are constrained to differ from the learned Judge's view. If the course of the proceedings be carefully followed, it will be seen that nothing was done, which could be said to have had the legal effect of vacating the decree, from which the second appeal was filed.

(2.) The facts relevant to the question at issue may be briefly stated. The plaintiff, alleging that he became the purchaser of the suit property, sued the defendants for possession. Their defence was that some amount was due to them, and the trial Court after over-ruling the plea, gave judgment for the plaintiff. It must be mentioned that the property, as was admitted, was held in two distinct shares; one by the first defendant and the other by his brother the second and the latter's son the third. The first defendant alone appealed, without impleading defendants 2 and 3 the owners of the other part. The District Judge, giving effect to the defendant's contention, reversed the Munsiff's judgment and dismissed the suit. It is from his order of dismissal that the second appeal referred to above was filed. The appellate Judge, it will be seen, committed an obvious mistake; he could have dismissed the suit, even on his own finding, against the first defendant alone, whereas he dismissed it in toto. Thereupon the plaintiff applied for a review of the District Judge's decree and put forward-two grounds in support of his application : first, that subsequent to the date of the Munsiff's judgment but prior to that of the appellate judgment, there was a decision given in a certain suit which negatived the defendant's right to the unpaid purchase money, by whatever name, it might be called and secondly, that the dismissal of the suit as against the second set of defendants was an error apparent on the face of the record.

(3.) Before proceeding further, we may mention the relevant dates : (1) the lower appellate Court's decree was passed on 7 August, 1930; (2) the review application was made on 12 September, 1930; (3) the second appeal was filed on 9 January, 1931; and (4) the order on the review petition was passed on 14 November, 1931.