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Veluri Sitaramasastry and ors. Vs. Isukapalli Sundaramma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberC.M.P. Nos. 11655, 11656 and 11657 of 1964 and 1147 of 1965
Judge
Reported inAIR1966AP173
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 1 - Order 45, Rule 2 - Order 47, Rules 1 and 5
AppellantVeluri Sitaramasastry and ors.
Respondentisukapalli Sundaramma and ors.
Appellant AdvocateT. Veerabhadrayya, Adv.
Respondent AdvocateP.P. Surya Rao, Adv.
DispositionPetition allowed
Excerpt:
property - review petition - order 47 rules 1 and 5, order 41 rule 1 and order 45 rule 2 of code of civil procedure, 1908 - review petition and civil miscellaneous petition filed simultaneously - presentation of civil miscellaneous petition amounted to preferring appeal - whether review petition lie as petitioner had preferred appeal - order 47 rule 1 permitted application for review from decree or order from which appeal was allowed but from which no appeal had been preferred - held, review petition tenable when presented simultaneously with civil miscellaneous petition. - - 1376: the crucial date for determining whether or not the terms of order 47 rule 1(1) are satisfied is the date when the application for review is filed. says that whoever desires to appeal to the supreme court.....orderanantanarayana ayyar, j.1. veluri gopalakrishna murthy filed o. s. no. 17 of 1948 in the court of the principal subordinate judge, eluru praying for partition of plaint schedule properties and for separate possession of his share. his brother, veluri seetharama sastry, filed o. s. no. 18 of 1948 for partition & for separate possession of his share. each of them asked for share out of joint family property which originally belonged to the joint family of their father. v. buchanna sastry (v. b. s.) and three sons including the two plaintiffs. the learned subordinate judge tried the two suits together and awarded a decree regarding certain items. krishnarnurty filed a. s. no. 105 of 1953 and seetharama sastry filed a. s. no. 180 of 1953 in the district court, west godavari. the learned.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. Veluri Gopalakrishna Murthy filed O. S. No. 17 of 1948 in the Court of the Principal Subordinate Judge, Eluru praying for partition of plaint Schedule properties and for separate possession of his share. His brother, Veluri Seetharama Sastry, filed O. S. No. 18 of 1948 for partition & for separate possession of his share. Each of them asked for share out of joint family property which originally belonged to the joint family of their father. V. Buchanna Sastry (V. B. S.) and three sons including the two plaintiffs. The learned Subordinate Judge tried the two suits together and awarded a decree regarding certain items. Krishnarnurty filed A. S. No. 105 of 1953 and Seetharama Sastry filed A. S. No. 180 of 1953 in the District Court, West Godavari. The learned Additional District Judge, West Godavari heard the two appeals together and passed a common judgment in which he held that the alienations under two documents (Exs. B. 20 and B. 19) regarding item 9 in the B schedule in O. S. No. 17 of 1948 (which is item 6 in plaint B schedule in O. S. No. 18 of 1948) were not valid and binding on the plaintiffs and he awarded a decree for partition and for separate possession to each plaintiff of one eighth share of this item. Seetharamasastry filed S. A. No. 750 of 1959 and Krishnamurty filed S. A. No 751/59 against the common judgment of the learned Additional Districl Judge. By common consent, the two appeals were heard together by a Division Bench consisting of Chandra Reddy, C. J. and myself.

Along with these two appeals, we also heard a memo of cross objections which was filed by some defendants contending that the alienations under Exhibit B. 20 and Exhibit B. 19 were valid and binding on the plaintiffs. Shri Ch. Sankara Sastry argued the two appeals on behalf of the appellants in great detail but he did not urge before us that the one-eighth share awarded By the learned Additional District Judge was wrongly awarded instead of one forth share which was the correct share I pronounced judgment of the Division Bench sitting singly in my cham-bers. While I was pronouncing judgment Shri T. Veerabhadrayya, who appeared before me on behalf of the appellants, mentioned that the one eighth share mentioned in the judgment of the learned Additional District Judge was not correct and that he ought to have mentioned one fourth share. Shri P. P. Surya Rao, who appeared for the respondents at that time, did not agree with the statement of Shri T. Veerabhadrayya. I completed pronouncing the judgment of the Division Bench on 18-11-1963 dismissing S. A. Nos. 750 and 751 of 1959 and also dismissing the Memorandum of cross-objections. Subsequently, Sri T. Veerabhadrayya filed these petitions, C. M. P. Nos. 11655 to 11657 of 1964 on 6-6-1964. He also filed along with them S. R. No. 22524 of 1964 together with a petition (C. M. P. No. 11653 of 1964) for excusing delay in filing S. R. No. 22524 of 1964. I allowed that petition. Thereupon, S. R. No. 22524 of 1964 was numbered as C. M. P. No. 1147 of 1965.

2. C. M. P. No. 11654 of 1964 was filed to dispense with certified copy of Judgment. I allowed it.

3. C. M. P. No. 11657 of 1964 by Krishnamurty and C. M. P. No. 1147 of 1965 by Seetharama Sastry pray for reviewing the Bench Judgment in S. A. Nos. 750 and 751 of 1959 by granting decree for partition and separate possession of one fourth share instead of one eighth share in item 9 out of Plaint B schedule as mentioned in O. S. No. 17 of 1948. C. M. P. Nos. 11655 and 11656 of 1964 are filed to amend the decree and judgment,

4. Shri T. Veerabhadrayya, the learned advocate for the petitioners, contends that I, sitting singly, have jurisdiction to pass order on the review petitions. This contention is correct in view of the express wording of Order 47 Rule 5 C. P. C. and the decision of the Madras High Court in In re P. Chenna Reddi, AIR 1942 Mad 23. Order 47 Rule 5 C. P. C. runs as follows:

'Where the judge or judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented such judge or judges or any of them shall hear the application, and no other judge or judges of the court shall hear the same'.

I am the Judge who passed the decree and Judgment in S. A. Nos. 750 and 751 of 1959 and continue attached to the Court. In AIR 1942 Mad 23, Somayya J., held according to the invariable practice of the Madras High Court, the application for review has to be heard and decided only by the judges who heard the appeal or where one of them is absent by the other Judge sitting alone and that it cannot be heard by another Bench. The learned Judge extracted with approval a passage from Aubhoy Churn Mohunt v. Shamout Lochun Mohunt, (1889) ILR 16 Cal 788.

5. Shri P. P. Suryarao, the learned advocate for the respondents, has raised a preliminary objection that the review petition does not lie as, at the time of its filing, the petitioner has 'preferred' appeal. He furher contends that the presentation of S. C. C. M. P. with prayer for leave to appeal to the Supreme Court against the judgment in the Second appeals amounted to preferring an appeal for purpose of Order 47 Rule 1 C. P. C. The S. C. C. M. P. concerned was filed on the same day as the review petition, Shri T. Veerabhadrayya says that they are both presented simultaneously. This statement stands unchallenged. There is no room in doubt the correctness of that statement.

6. Order 47 Rule 1 C. P. C. runs as follows:

'Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred .....on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review may apply for a review'.

The question is whether 'no appeal has been preferred' at the relevant point of time. In Thungabhadra Industries Ltd. v. Govt. of Andhra Pradesh, : [1964]5SCR174 it was observed as follows at p. 1376:

'The crucial date for determining whether or not the terms of Order 47 Rule 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed or, the jurisdiction of the court hearing the review petition would come to an end'.

Their Lordships also observed earlier as follows: fat p. 1376).

'Order XLVII Rule 1(1) of the C. P. C. permits an application for review being filed 'from a decree or order from which an appeal is allowed but from which no appeal has been preferred'. In the present ease, it would be seen, on the date when the application for review was filed the appellant has not filed an appeal to this court and therefore the terms of Order XLVII Rule 1(1) did not stand in the way of the petition for review being entertained'.

In that case, the relevant dates are seen from the Following passage in the Judgment of the Supreme Court: (at p. 137R).

'As already seen, the applications for reviewing the order dated September 4, 1959 refusing the certificate were fifed on November 23, 1959. During the pendency of those review applications the appellant filed on November 30, 1959, petitions seeking special leave of this court under Article 136 of the Constitution but those petitions were filed beyond the period of limitation prescribed by the rules.... the petitions for special leave never legally came on the file of this Court.'

Apparently, the delay in filing was not excused and the petitions for special leave were dismissed as not tiled in time. The review applications were disposed of on 6-1-1961 by the High Court. Their Lordships of the Supreme Court in interpreting the wording of Order 47 Rule 1 C. P. C. indicated that the petition for review would not lie if, on the date on which the application for review was filed, 'the appellant had not (already) filed an appeal to this Court'. The word 'already' is not found in the above passage but the use of the words 'had not filed an appeal' as distinguished from the words 'did not file an appeal indicates that petition 'for review would lie if filing of an appeal had not already been done as a completed act when the review petition was being presented.

7. Shri P. P. Surya Rao for the respondents contends that the date of preferring of appeal for the purpose of Order 47 Rule 1 C. P. C. is the date on which the S. C. C. M. P. was presented in this High Court. Sri T. Veerabhadrayya for the petitioners, on the oilier hand, contends that it is not the date of preferring the appeal but the date on which petition of appeal is lodged in the Supreme Court under Order 16 Rule 2 which should be treated as the, date on which the appeal is preferred. Order 16 Rule 2 of the Supreme Court Rules. 1950 runs as follows;

'The appellant shall lodge his petition of appeal within a period of forty five days from the date of the service of notice of despatch of the record by the Registrar of the court appealed from. ......The appellant shall, along with the etition of appeal, lodge sufficient number of copies of the same for service on the respondents.....'

8. Order 41 Rule 1 C. P. C. runs as follows;

'Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf'.

This indicates that the presentation of the appeal memo amounts to preferring the appeal. Order 45 Rule 2 C. P. C. says that whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of (hereafter referred for convenience as High Court). Order 45 Rule 3(1) C. P. C. says that every petition shall state the grounds of appeal and pray for a certificate. Order 45 Rule 7 C. P. C. provides that where the certificate is granted, the petitioner shall furnish security etc. Rule 8 of Order 45 C. P. C. provides that where security has been furnished and deposit made to the satisfiction of the Court, the court shall (a) declare the appeal admitted. It would appear from the above rules that (i) presentation consists of only the S. C. C. M. P. along with the grounds: (ii) such presentation is in the High Court and (iii) after formalities are fulfilled as required by tie rules, the appeal is declared as admitted by the High Court itself. Thus presentation of S. C. C M. P. in effect amounts to presentation of appeal to the Supreme Court.

Order 12 Rule 1 of the Supreme Court rules says:

'Subject to any special directions which the court may give in any particular case, the provisions of order XLV of the Code...... shall apply in relation to appeals preferred under Articles 132(1), 133(1) and 135 of the Constitution.' Rule 2 of Order 12 of the Supreme Court rules men lions as follows:

'An appellant who has obtained a certificatefrom the High Court may, at any time prior tothe making of an order admitting the appeal, withdraw the appeal .......'

This clearly shows that when the certificate isobtained by a person from the High Court, ineffect, an appeal has been admitted and he isan appellant who has presented an appeal and is in a position to withdraw the appeal. Order 16 RULE 6 mentions as follows:

'Where an appellant who has not lodged his petition of appeal desires to withdraw his appeal, he shall make an application to that effect to the Registrar ...'

This also clearly indicates that even before lodging of a petition of appeal as contemplated in Rule 2 of Order 16, the person concerned is in the position of an appellant and is in a position to withdraw the appeal. Thus, it is obvious that the appellant already exists on the record even before petition of appeal is lodged in the Supreme Court, under Order 16 Rule 2 and that the order under Order 45 Rule 8 C. P. C. amounts to admitting the appeal. It follows that the presentation or the Supreme Court Civil Miscellaneous Petition itself amounts to presentation of the appeal or preferring the appeal. The contention of Shri P. P. Surya Rao in this respect is tenable and I accept it.

9. In the present case, the Supreme Court Civil Miscellaneous Petition concerned and the review petition were presented simultaneously. Sri P. P. Surya Rao relies on the decision in Secy. of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1932 Cal 171. In that case, the relevant dates were as follows: On 25-1-1929 the High Court pronounced Judgment. On 22-4-1929, the Secretary of State applied for leave to appeal to the Privy Council. On 2-7-1929 leave was granted. The Privy Council disposed of the appeal on 20-3-1931 holding that the appeal did not lie. Review petition was filed by the Secretary of State on 12-6-1931 Meanwhile, the Hindustan Insurance Society also had applied for review on 22-4-1929 and had made an application for leave to appeal to the Privy Council on 17-5-1929. The question arose whether there was sufficient cause for the delay by the Secretary of State in filing the review petition. The case was heard by a Division Bench.

Ghose C. J,, held that sufficient cause ha not been made out for excusing the delay between the date when leave to appeal to the Privy Council was applied for and the date when the Privy Council pronounced judgment (time between 20-3-1931 and 12-6-1931). Mitte J. also held as follows: (at p. 177).

'I would, therefore, rest my decision on the ground that no explanation has been given as to why the review was not filed between the date of judgment and the implication for leave to His Majesty-in-Council'

While dealing with the case, Mitter J. also made an observation as follows: (at p 176).

'It appears to me that the scheme of the Order relating to review in the C. P. C. is that in those cases in which an appeal ties the application for review should be filed before the appeal is lodged. In this case, at any rate, the Secretary of State thought that an appeal would lie to His Majesty in Council against the order of the High Court I fail to understand why in these circumstances the application for review was not made prior to the tiling of the application for leave. There seems to be no reason able excuse for this course.'

In that case, the application for leave to appeal to the Privy Council was not filed on the same date as the date on which the review petition was filed. The question as to whether review petition could be validly filed simultaneously along with a petition for leave to appeal to the Privy Council did not arise and was not decided in that case. Therefore the observation of Mitter J. was only of a general nature.

10. The words 'has been filed' refer to a completed action. Under Order 47 Rule 1 C. P. C. a petition for review would not lie only when an appeal has already been preferred as mentioned by me. In effect, on the wording of Order 47 Rule 1 C. P. C., a person aggrieved can file a review petition if no appeal has been preferred, that is, if no appeal has already been presented earlier than the time when review petition was presented. Therefore, review petition can be validly presented so long as it is not filed after the presentation of an appeal petition. It is tenable when presented simultaneously with presentation of S. C. C. M. P.

11. Shri T. Veerabhadrayya contends that the decrees of this court in S. A. Nos. 750 and 751 of 1959 were passed on account of mistake or error apparent on the face of the record.

12. The learned Additional District Judge mentioned in para 3 of his judgment as follows:

'The property acquired by the plaintiff and defendants 1 and 2 under the gift deed (Ex. A. 11) is shown as 'A' schedule in the plaint. The property belonging to the family consisting of the plaintiff, defendants 1 and 2 and V. B. S (father of plaintiff and defendants 1 and 2) is mentioned as 'B' schedule in the plaint. As I have already stated Sitaramaswamy (father of V. B. S. and paternal grandfather of plaintiffs and defendants 1 and 2) conveyed his undivided half share in the proportion mentioned in Ex. A. 11 to his grand sons viz., the plaintiffs and defendants 1 and 2 and therefore each of the donees acquired 1/6th share in the plaint 'A'' schedule properties by virtue of Ex. A. 11. The plaintiff and defendants 1 and 2 are entitled to 1/8th share each in the plaint 'B' schedule properties'

Beyond doubt or dispute, there was joint family consisting of V. B. S. and his three sons and it had joint family property. Each of them was admittedly entitled to one fourth share of that joint family property. So, each of them was really entitled to one fourth of each item of joint family property shown in B schedule The eldest son did not question the alienation within the period of limitation The two vounger sons each filed a suit claiming his share There were seven items in 'A' schedule in O. S. No. 17 of 1948 which I am taking as basis for discussion for the purpose of convenient reference. Each of items 1 to 7 consisted of joint hall share in a bigger unit. For example, item 1 is joint half share in S. No. 332/2, for convenience in discussion, I shall refer to the whole of S. No 332/2 as a 'unit' so that item 1 is half of the 'unit'. Similarly, in B schedule in O S. No 17 of 1948, there were ten items, of these, each of items 2 to 8 consisted of a joint half share in a bigger unit. But, each of items 9 and 10 was a full unit. Neither of them was described as half share in a bigger unit. The shares which each of the plaintiffs claimed was one third of each item in A schedule (as it was property which was acquired by gift only by the three brothers, their father (V. B. S.) had no share in it) and one fourth share in each of the items in B schedule. As regards each of the items in A and B schedules, which was itself half share of a bigger unit, claim of each of the plaintiffs could be treated as one sixth share of the respective bigger unit in schedule A and one eight share of the bigger unit in schedule B.

Regarding these items, the learned Additional District Judge would have been right if he had meant and mentioned the share of each plaintiff as one sixth share and one eighth share in each of those bigger units concerned and not as one-sixth and one-eighth share in each of those items mentioned in Schedules A and B. But this mention of one eighth share was not correct and could not be correct regarding items in B schedule (items 8 and 9) which consisted of whole units and not half share of individual units. The learned Additional District Judge was under a wrong impression that each and every item in each schedule was half of a unit and he failed to note that item 8 and item 9 were Full units. He committed a mistake in describing the share of the plaintiff as one-sixth of each item in A schedule and one eighth of each item in B schedule instead of as one third of each item in schedule and one fourth of each item in B schedule.

13. At the end of para 10 of his judgment, he learned Additional District Judge held that property which was sold under Exhibit B. 20 vas joint family property (belonging to B. V. S. and his three sons). The same property (concerned in Ex. B. 20) was also concerned in Exhibit B. 19. On the basis of these findings, he gave his final finding in para 53 of his judgment as follows:

'In the circumstances, I hold that alienations under Ex. B. 20 and Ex. B. 19 of item 9 of the plaint B schedule are not valid and binding on the plaintiffs. Consequently, the suits have to be decreed for partition and separate possession of 1/8th share of plaintiff in each suit in that item viz., item (9) of the plaint 'B' schedule.'

Item 9 of the plaint B schedule in O. S No. 17 of 1948 is a full unit and not half of a unit. He obviously committed a mistake in mentioning 1/8th share instead of one fourth share. Item 9 of B schedule in O. S No. 17 of 1948 was item ft of B schedule in O S. No 18 of 1948.

14. In the judgment in the second appeals this court agreed with the finding of the learned Subordinate Judge that the alienations under Ex. B. 20 and Ex. B. 19 were not valid and binding on the plaintiff. The above mentioned mistake in the lower appellate court's judgment was not brought to our notice or argued about though there were very elaborate arguments adduced before us on other points in great detail by Shri Shankara Sastry the learned, advocate for the appellants. But, in the appeal memos, there was a ground relating to this Ground No. 31 in S. A. No 750 of 1959 is as follows:

'The lower court ought to have granted a decree for partition and separate possession of 1/4th share in item 9 of the plaint B schedule instead of 1/8th share therein even on its findings.'

In the appeal memo in S. A. No. 751 of 1959, reference was made to the grounds of appeal in S. A. No. 750 of 1959. As this point was not brought to our notice or argued, we dismissed the second appeals and confirmed the decrees of the lower appellate court as they stood. When I was pronouncing judgment. Shri T. Veerabhadrayya who represented the appellants said that there was an error in the lower appellate Court's judgment by awarding decrees for one-eighth share instead of 1/4th share. At that time, I was pronouncing judgment in my chambers sitting singly but the judgment was of a Division Bench consisting of Chandra Reddy C. J., and myself. Shri P. P. Suryarao for the respondents disputed the contention of Shri T. Veerabhadrayya. In those circumstances. I completed pronouncing the judgment.

15. In : [1964]5SCR174 if was observed as follows: (at p. 1377).

'A review is by no means an appeal in dis guise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion For dealing with this difference exhaustively or in any great detail but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record could be made out, No questions of fact were involved in the decision of the High Court in T R. Cs 75 to 77 of 1956. The entire controversy turned on the proper interpretation of Rule 18(1) of the Turnover and Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956: nor could it be doubted or disputed that these were substantial questions of law In the circumstances, therefore, the submission of the appellant that the order of September, 1959 was vitiated by 'error apparent' of the kind envisaged by Order XLVII Rule 1. C. P. C. when it stated that 'no substantial question of law arose' appears to us to be clearly well founded '

In the present case also, there was no need lot elaborate argument to show that 'one eighth' was written as a mistake while 'one fourth' alone could have been meant and ought to have been written as share of the plaintiff on facts relevant to share which were undisputed. If the learned advocate for the appellants had merely pointed out the undisputed facts during arguments it would have been sufficient to show that the learned Additional District Judge put one-eighth share as mistake for one-fourth share in para 53 of his judgment. So, I find that there was mistake or error apparent on the face of the record and that the learned advocate for the appellants, by oversight forgot to point it out at the time of arguments.

16. In Govinda Chettiyar v. Vardappa, AIR 1940 Mad 17 though there was no error apparent on the face of the record, still there was a mistake of counsel leading to errors in the judgment. It was held that judgment could be reviewed. Patanjali Sastry J. (as he then was) observed as follows: (at p. 18).

'There was of course no mistake or error apparent on the race of the record in this case. If there were, that would obviously be a sufficient ground by itself for a review. But the misapprehension owing to which the learned counsel for the respondents says he did not urge all his arguments in support of the finding recorded in favour of his clients by the first court, and the consequent erroneous impression on the part of the learned Subordinate Judge seem, to my mind, to be analogous enough to an error apparent on the face of the record to be a sufficient reason for review under Order 47 Rule 1. Civil Procedure Code.'

The learned Judge referred with approval to prior decisions of Rangoon and Madras High Courts.

17. In Gangamma v. Venkanna, : [1964]5SCR174 the above decision of the Madras High Court in AIR 1940 Mad 17, was followed and it was held that review should be allowed when the counsel had failed to point out to the appellate court that the suit had been heard without taking evidence on behalf of the defendant.

18. In Jamna Kuer v. Lal Bahadur, AIR 1950 FC 131, it was observed us follows: at p. 132:...'In the result Mst. Jamna Kuer's appeal was allowed and it was declared that she was entitled to the properties left by Kunj Bchari.

In the concluding portion of the judgment the learned judges made a specific declaration to the effect that Jamna Kuer was entitled to 2 1/2 biswas Zamindari of village Kaman, the cash certificates and the nine shares of the District Co-operative Bank, all entered in the application dated 20th August, 1936 of the applicants under Section 4, Encumbered Estates Act. This declaration seems to have been made under some misapprehension as the list filed by the applicants on 20th August 1936 was not limited to these properties....Her claim was not limited to only those properties which had been mentioned by her originally at the foot of her objection petition. It was common ground between the parties that items 3 to 37 in the gazette notification of 15th May 1936 were the property of Kunj Bahari and the person who was held to be legal heir was entitled to all those proper ties....

The mistake as to the items of property regarding which Mt. Jamna Kuer had laid claimis apparent on the face of the record Whetherthe error occurred by reason of the counsel's mistake or it crept in by reason of an oversight onthe part of the court was not a circumstancewhich could affect the exercise of jurisdiction ofthe court to review its decision . . . .

A mere look at the trial court's decision indicates the error apart from anything else.'

In the instant case, it was beyond dispute that if any item of property was held to belong to the joint family of V. B. S. and his three sons, each of the plaintiffs would be entitled to one fourth share of that item. So, I find that there is an error apparent on the face of the record.

19. Sri P. P. Suryarao on behalf of the respondents has relied on certain decisions. In Venkayya v. Suryanarayana, AIR 1940 Mad 203 it was held by Kunhi Raman, J., that, where a specific question involved in an issue that was raised at the instance of the plaintiff has been abandoned as a result of an erroneous view taken by the plaintiff's pleader, court cannot interfere under Order 47 Rule 1 C. P. C. In this case, I am convinced that Shri Shankara Sastry did not abandon ground No. 31 in his appeal Memo but only forgot to argue it before us by mere oversight.

20. In Sabapathi v. Subraya, (1878) ILR 2 Mad 58 it was held that a party who not only had an opportunity of raising a question, but who did raise it on appeal and on argument abandoned it, cannot, under ordinary circumstances, be allowed to agitate the question under review. As I have already mentioned, on the relevant facts, I bold that Shri Shankara Sastry did not abandon ground No. 31 but only forgot to mention it by oversight.

21. I find that, on the facts of this case, the petitioners' prayers of review have to be granted.

22. I, therefore, allow C. M. P. Nos. 11657 of 1964 and 1147 of 1965, review the judgment dated 18-11-1963 in S. A. Nos. 750 and 751 of 1959 by granting a decree for partition and separate possession of one fourth share in the property which is item 9 in B Schedule in O. S. No. 17 of 1948 and item 6 in B Schedule in O S. No. 18 of 1948.

23. In view of my order allowing the above two C. M. Ps. Sri T. Veerabhadrayya does not press C. M. P. Nos. 11655 and 11656 of 1964. I dismiss C. M. P. Nos. 11656 and 11655 of 1964. In the circumstances of the case, I make no order as to costs in all these petitions.


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