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Ram Parsan Upadhya Vs. Nageshar Pande and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All160; 54Ind.Cas.764
AppellantRam Parsan Upadhya
RespondentNageshar Pande and ors.
Cases Referred and Partap Singh v. Jaswant Singh
Excerpt:
civil procedure code (act v of 1908), order. xlvii, rule 1 - review, application for--appeal, pendency of, whether bar to hearing of review application--appeal, disposal of, effect of. - .....parsan upadbya, the pre emptor. the claim was resisted on various grounds, it was decreed by the learned munsif of bansgaon, on the 10th of january 1919. ram parsan upadhya, the pre-emptor, filed an application before the learned munsif for review of judgment on the 12th of february 1919. two days after ram parsan filed an appeal in the district judge's court from the decree of the learned munsif. the application for review was heard and disposed of on the 31st of may 1919. the learned munsif held that as an appeal had been filed by ram parsan, which appeal was pending at the time, the application for review was not maintainable. he accordingly dismissed it on the 31st of may 1919. on the 4th of july 1919 ram parsan came up in revision to this court, alleging that the pendency of.....
Judgment:

1. It appears that there are three brothers called Rameshar Pande, Nageshar Pande and Sri Ram Pande who, according to the allegation of Nageshar Pande, the plaintiff, are members of a joint and undivided Hindu family. Rameshar Pande and Sri Ram Pande, two of the brothers, executed a deed of pale in respect of some of the family property in favour of Parmanand Tewari. One Ram Parsan Upadhya sued to pre erupt the sale and obtained a decree. After the passing of the pre-emption decree, Nageshar Pande brought the suit out of which this application for revision has arisen, for a declaration that the sale by Rameshar Pande and Sri Ram Pande in favour of Parmanand Tewari was invalid and that the decree of Ram Parsan Upadhya on the ground of pre emption was also invalid and inoperative. Nageshar Pande impleaded as defendants in the case his two brothers Rameshar Pande and Sri Ram Pande, the vendors, Permanand Tewari, the vendee, and Ram Parsan Upadbya, the pre emptor. The claim was resisted on various grounds, it was decreed by the learned Munsif of Bansgaon, on the 10th of January 1919. Ram Parsan Upadhya, the pre-emptor, filed an application before the learned Munsif for review of judgment on the 12th of February 1919. Two days after Ram Parsan filed an appeal in the District Judge's Court from the decree of the learned Munsif. The application for review was heard and disposed of on the 31st of May 1919. The learned Munsif held that as an appeal had been filed by Ram Parsan, which appeal was pending at the time, the application for review was not maintainable. He accordingly dismissed it on the 31st of May 1919. On the 4th of July 1919 Ram Parsan came up in revision to this Court, alleging that the pendency of appeal on his behalf in the Court of the District Judge was no ground for the rejection of his application for review by the learned Munsif. On the 7th of July 1919 a learned Judge of this Court admitted the application and issued notice to the other side to show cause. About a week after, namely, on the 15th of July 1919 the appeal of Ram Parsan was heard by the learned District Judge and disposed of. The appeal was dismissed. It is contended on behalf of, Ram Parsan the applicant before this Court, that the order of the learned Munsif of, Bansgaon rejecting his application for review is erroneous on the face of it in view of the case-law on the subject. The applicant relies upon the. following cases: Chenna Reddi v. Pedda Obi Reddi 2 Ind. Cas. 802 : 32 M. 416 : 6 M.L.T 135 (F.B.) : 19 M.L J. 388; Narayan Purshottam v. Laxmibai Duto bhagwan 23 Ind. Cas. 513 : 38 B. 416 : 16 Bom. L.R.180 and Partap Singh v. Jaswant Singh 52 Ind. Cas. 642 : 17 A.L.J. 1021. The case law, is no doubt in favour of the contention for the applicant, but the circumstances of the- three cases relied upon by the applicant were quite different to those in his case here. In the cases relied upon the appeal had not been disposed of. In the present case the application of Ram Parsan before this Court has come up for hearing after the disposal of his appeal by the learned District Judge. The decree of the learned Munsif no more subsists. The final decree in the case is that of the learned District Judge. No doubt the order of the learned Munsif rejecting the application for review was erroneous. It would, however, serve no useful purpose now to set aside that order, inasmuch as the decree sought to be reviewed no more exists. The decree which subsists at present is that of the District Court. We, therefore, disallow the application and dismiss it. Considering all the circumstances, the parties will bear their own costs.


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