Allowed

Shri. Mahadu Raoji Bhoye and Ors. v. Sau. Parvatibai Mahadu Gave and Ors.

Bombay HC18 Dec 2012CAC/754/2012

Case brief

AI extract

What is this about?

The High Court held that a challenge to an appellate decree imposing rejection of a plaint under Order VII Rule 11 CPC lies only via second appeal under Section 100, not revision. Applicants withdrew the applications in second appeal.

What did the court decide?

Leave to withdraw civil application and revision with liberty to file second appeal in impugned judgment's terms.

Shri. Mahadu Raoji Bhoye and Ors. Vs Sau… — Contract and Commercial Disputes | Bombay HC (2012)

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902-cac-754-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO.754 OF 2012

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WITH

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CIVIL REVISION APPLICATION STAMP NO.24043 OF 2012

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Shri Mahadu R. Bhoye and Ors. ....Applicants. Versus Sau. Parvatibai M. Gave and Ors. ...Respondents.

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Mr. G.R.Agarwal, advocate, for the applicants. Mr. M.S.Karnik, advocate, for the respondents.

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CORAM : RANJIT MORE, J.

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DATED : December 18, 2012.

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P.C.:

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This civil application is filed for condonation of delay of 68 days occurred in filing aforesaid revision.

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2 By said revision, applicants (original defendants) are challenging judgment and decree dated 14^th March, 2012 passed in Civil Appeal No.136 of 2011 whereby trial Court’s order dated 15.9.2009 passed in Regular Civil Suit No.251 of 2008 under Order VII Rule 11(d) of the Civil Procedure Code, 1908 (In short ‘CPC’) rejecting plaint was set

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902-cac-754-12

aside and respondent’s (original plaintiff) suit was restored to its original position.

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3 Trial Court by its order dated 15.9.2009 rejected plaint under provisions of Order VII Rule 11(d) of the CPC. This order amounts to 'decree' as is defined under Section 2(2) of the CPC. This decree can be challenged by resorting to provisions of Section 96 of the CPC. Respondents, accordingly, filed aforesaid civil appeal, which was allowed by the lower appellate Court. Under Section 100 of the CPC , second appeal lies to the High Court from every decree passed in appeal by any Court subordinate to the High Court. In the present case, therefore, applicants’ remedy is to file second appeal under Section 100 of the CPC and not revision under Section 115 of the CPC.

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4 In the light of above discussion, Mr. Agarwal learned counsel for applicants seeks leave to withdraw above civil application and revision with liberty to file second appeal challenging the order impugned in above revision. Leave with liberty as prayed for, is granted. Civil application and revision stand disposed of as withdrawn.

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5 Applicants are at liberty to apply for return of certified copy so

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as to enable them to annexe the same with memo of second appeal.

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6 Needless to mention that applicants are also entitle for benefit under Section 14 of the Limitation Act.

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(RANJIT MORE, J.)

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Shivgan

Shri. Mahadu Raoji Bhoye and Ors. v. Sau. Parvatibai Mahadu Gave and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Mahadu Raoji Bhoye and Ors. v. Sau. Parvatibai Mahadu Gave and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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