Review petition seeking review of an order dismissing an appeal filed against rejection of impleadment of Bank of Maharashtra in a succession petition under Section 301 of the Indian Succession Act. The court held the review misconceived, arguments being on merits beyond review scope, and dismissed it without imposing costs.
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.
1 RPA-1-2024 28.03.doc
Digitally signed by GAYATRI GAYATRI RAJENDRA RAJENDRA SHIMPI SHIMPI Date: 2024.04.01 17:02:50 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION NO. 01 OF 2024
IN
APPEAL NO. 21 OF 2024
IN
INTERIM APPLICATION NO. 2541 OF 2023
IN
MISC. PETITION NO. 286 OF 2023
Abha Dastane – Rao … Petitioner/Appellant
V/s.
Mr. Prabhakar Deolankar & Ors. … Respondents
Ms. Abha Dastane Rao Appellant in person present.
Mr. Suhas Rohile i/b Mr. S. N. Chandrachood for Respondent
No. 1.
Mr. Hemant Ghadigaonkar Respondent Nos. 2 and 3.
Mr. Pramod Pawar Respondent No. 4.
Mr. Kunal Chheda Respondent No. 5.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. & ARIF S. DOCTOR, J.
DATED: 27st MARCH, 2024
P.C.:
This present Review Petition is thoroughly
misconceived and devoid of merit. The Review Petition, has
been filed seeking a review of the order dated 14th February
1 of 8
Gayatri
2 RPA-1-2024 28.03.doc
2024 by which this Court had dismissed the caption Appeal (i.e. Appeal No. 21of 2024). The said Appeal was filed impugning only a part of an order dated 12th January 2023 by which Interim Application filed by the Review Petitioner was rejected to the extent it sought impleadment of Respondent No. 5 (i.e. Bank of Maharashtra) as a party Respondent and certain consequential reliefs to the captioned Miscellaneous Petition which is filed under Section 301 of the Indian Succession Act, 1925 (i.e. Succession Act) for removal of Respondent No. 1 as an executor of the last will and testament of one Dr. Narayan Ganesh Dastane.
order under review had failed to properly construe Section 301 of the Indian Succession Act 1925 (‘Succession Act’). She submitted that the purport of the same was not only restricted to the removal of an executor / administrator but also provided for restitution of the estate of the deceased to enable the person who was substituted as executor/administrator to properly administer the estate of the deceased. She then submitted that this Court had in the order under review totally
2 of 8
Gayatri
3 RPA-1-2024 28.03.doc
misconstrued Section 301 of the Succession Act by restricting its application to only removal of an executor/administrator. She then placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Union of India Vs. Hansoli Devi1 to submit that when the words of a statue are plain and unambiguous, then the Court must give effect to the words used in statute and Courts cannot adopt a hypothetical construction which would be more consistent with objects and policy of the act.
1 (2002) 7 SCC 273
3 of 8
Gayatri
4 RPA-1-2024 28.03.doc
Investigation2 to submit that the power of review was very wide. From the said judgement, she placed reliance upon the following paragraph, viz.
“34. The foundations, which underlie the review jurisdiction, has been examined by this Court at some length in the judgment in S. Nagaraj and others v. State of Karnataka and anothers15:
The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and 15 1993 Supp (4) SCC 595 fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to call an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order.”
2 (2020) 2 SCC 338
4 of 8
Gayatri
5 RPA-1-2024 28.03.doc
5 of 8
Gayatri
6 RPA-1-2024 28.03.doc
the provisions of Order XVLII of the CPC. The arguments advanced on the scope of Section 301 of the Succession Act are arguments on merits which we have heard and decided on merits in our order which is under review in the present Petition. Thus, reliance placed by the Appellant upon the judgment of the Hon’ble Supreme Court in the case of Hansoli Devi (supra) is of absolutely no relevance since that would once again call upon us to consider the ambit and scope of Section 301 on merits, which is not open to us to do in an application for review under Order XVLII of the CPC. We have already considered the ambit and scope of Section 301 of the Succession Act in the Order under review and given our findings accordingly. If the Review Petitioner is aggrieved by the same it is always open to the Review Petitioner to seek the appropriate remedy to challenge the said Order. As already noted above, a review petition is not appropriate remedy.
6 of 8
Gayatri
7 RPA-1-2024 28.03.doc
B. We also find the Review Petitioner’s contention that this Court must expunge the observations made by the Learned Judge in paragraphs 24 to 33 of the order dated 12th January 2024to be entirely untenable for four reasons. First no such contention was ever advanced when the captioned Appeal argued. Second the present review has been sought in respect of an order passed by this Court and not the Order of the Learned Judge. If what the Review Petitioner seeks is expunging remarks of the Learned Judge, the Review Petitioner ought to have filed an appropriate application before the Learned Judge, which the Review Petitioner has chosen not to do. Third, and crucially, the observations made by the Learned Judge in the order dated 12th January 2024 are clearly for the purpose of deciding the Interim Application filed by the Review Petitioner and nothing else. The same cannot in any manner operate as res judicata in any independent proceeding should the Appellant chose to file against Respondent No. 5 (i.e. the Bank of Maharashtra) or any of the parties to the said Interim
7 of 8
Gayatri
8 RPA-1-2024 28.03.doc
Application. Fourth, we had by our Order dated 14th February 2024 i.e. the Order of which Review has been sought made expressly clear that the Review Petitioner was at liberty to file independent proceedings against Respondent No.5.
C. As already noted above, neither of the judgements relied upon by the Review Petitioner are in any manner applicable or relevant to either the facts of the case or the scope of review. We must note here that despite this being pointed out repeatedly to the Review Petitioner, she continued making submissions and regurgitating arguments on merits. Such conduct has occasioned a considerable waste of judicial time.
Review Petition though we were inclined to, we have refrained from imposing costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
8 of 8
Gayatri
2 issues framed by the court
Whether the Review Petition was maintainable under Order XLVII CPC against dismissal of the Appeal.
Whether observations in paragraphs 24 to 33 of the order dated 12 January 2024 should be expunged.
Colour shows how this judgement treated each authority
Union of India Vs. Hansoli DeviReferred
(2002) 7 SCC 273 · Who else cites this
Yashwant Sinha Vs. Central Bureau of InvestigationReferred
(2020) 2 SCC 338 · Who else cites this
S. Nagaraj and others v. State of Karnataka and othersReferred
1993 Supp (4) SCC 595 · Who else cites this
3 provisions across 3 enactments
Abha Dastane – Rao
Prabhakar Deolankar
Bank of Maharashtra
Devendra Kumar Upadhyaya
Arif S. Doctor
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
