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Muktaji Bhagoji and anr. Vs. Manaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom684
AppellantMuktaji Bhagoji and anr.
RespondentManaji
Excerpt:
dekhan agriculturists' relief act (xvii of 1879), sections 53 and 54 - special judge--his powers in revision--withdrawal of suit--mistake in filing suit not a ground for withdrawal. - - in the present case the subordinate judge had rejected a suit for redemption, on the ground that the plaintiff had failed to prove the mortgage and was not the owner of the land in suit. for the plaintiff did not, in his second application, complain of any illegality or impropriety in the decree of the subordinate judge......the mortgage and was not the owner of the land in suit. thereupon the plaintiff applied to the special judge to review the decree under section 53 of the act. while the application was pending, the plaintiff made another application, saying that he had 'committed some error in the matter of bringing the suit,' and asking for permission to withdraw the suit, with liberty to bring a new one, as it was then too late to amend the plaint. the special judge granted this application. in doing so, we think, he acted without jurisdiction; for the plaintiff did not, in his second application, complain of any illegality or impropriety in the decree of the subordinate judge. he did not say that the subordinate judge had wrongly refused to allow him to withdraw the suit. he alleged merely a.....
Judgment:

Birdwood, J.

1. When the Special Judge appointed under Section 54 of Act XVII of 1879 calls for and examines the record of a suit under Section 53, he can legally do so only for the purpose of satisfying himself of the legality or propriety of any decree or order passed by a Subordinate Judge in any suit or other matter under Chapter II, IV or VI of the Act and as to the regularity of the proceedings therein. In the present case the Subordinate Judge had rejected a suit for redemption, on the ground that the plaintiff had failed to prove the mortgage and was not the owner of the land in suit. Thereupon the plaintiff applied to the Special Judge to review the decree under Section 53 of the Act. While the application was pending, the plaintiff made another application, saying that he had 'committed some error in the matter of bringing the suit,' and asking for permission to withdraw the suit, with liberty to bring a new one, as it was then too late to amend the plaint. The Special Judge granted this application. In doing so, we think, he acted without jurisdiction; for the plaintiff did not, in his second application, complain of any illegality or impropriety in the decree of the Subordinate Judge. He did not say that the Subordinate Judge had wrongly refused to allow him to withdraw the suit. He alleged merely a mistake on his own part in bringing the suit. This was not a ground which justified the interference of the Special Judge. We, therefore, make absolute, with costs, the rule nisi granted in this case; and, reversing the Special Judge's order, restore the decree of the Subordinate Judge.


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