Second appeal raising substantial questions of law on the First Appellate Court's powers under Order 41 Rule 33 with Rules 23A and 25 CPC regarding remand and setting aside of an order in absence of cross-objections. Notice issued for final disposal at admission stage; handing over possession stayed till next date.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
908-SA-448-2024.docx
rrpillai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 448 OF 2024 WITH
INTERIM APPLICATION NO. 9942 OF 2024
Sadashiv Maruti Shinde
… Appellant
Vs.
Smt. Rajubai Somnath Shinde and Others … Respondents
Mr. Sujeet Bugade for the Appellant.
CORAM : GAURI GODSE, J.
DATE : 16th AUGUST 2024
ORDER :
raises following substantial questions of law :
Digitally signed by RAJESHWARI RAJESHWARIRAMESH RAMESH PILLAI PILLAI Date: 2024.08.22 14:16:07 +0530
(i) Whether in view of the observations made by the First Appellate Court in paragraphs 24 and 25 of the impugned judgment, it was necessary for the First Appellate Court to exercise powers under Order 41 Rule 33 read with Rule 23A and 25 of the Code of Civil Procedure, 1908 (“CPC”) and remand the matter to the trial court and grant an opportunity to defendant no. 2 to examine the attesting witness as prayed in the application at Exhibit 149 ?
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908-SA-448-2024.docx
(ii) Whether in the absence of any cross objections filed by
defendant no.2 the First Appellate Court by exercising powers under Order 41 Rule 33 of CPC could have set aside the order passed under Exhibit 149 and allowed the prayer of defendant no. 2 as prayed in the application at Exhibit 149 ?
Civil Application No. 9942 of 2024
addition to court notice learned counsel for the applicant to serve the respondent by private service and file service affidavit before the next date.
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908-SA-448-2024.docx
[GAURI GODSE, J.]
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2 issues framed by the court
Whether the First Appellate Court should have exercised powers under Order 41 Rule 33 read with Rules 23A and 25 CPC to remand for examination of an attesting witness.
Whether without cross-objections by defendant no.2, the First Appellate Court could under Order 41 Rule 33 set aside the Exhibit 149 order and allow that application.
2 provisions across 1 enactments
Sadashiv Maruti Shinde
Smt. Rajubai Somnath Shinde
Gauri Godse
As recorded by the court registry
7 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
