Writ petition challenging disposal after dismissal of Section 151 CPC application. Court held petitioners should have filed second appeal under Section 100 CPC against first appellate judgment. Writ petition dismissed as not maintainable.
Petitioners were told they could file a second appeal under Section 100 CPC.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8979/2018
----Petitioners
Versus
----Respondents
For Petitioner(s) : Mr. Anurag Kalawathy
(2 of 3)
[CW-8979/2018]
HON'BLE MR. JUSTICE ALOK SHARMA
Order
26/08/2019
The plaintiff Bhagchand (now deceased and
represented by his LRs-the respondents herein) filed a money suit
against the defendant Mahaveer Prasad (now deceased and represented by his LRs-the petitioners herein). The suit was decreed by the trial court on 4.11.1996. A regular First Appeal No.
12/1997 under Section 96 of CPC, 1908 thereagainst was dismissed by the Addl. District Judge, Ajmer vide his judgment dated 17.8.2007. Instead of taking further proceedings on being aggrieved thereof by way of an appeal under Section 100 CPC, the petitioners herein filed an application under Section 151 CPC for recall of the Appellate Court's judgment dated 17.8.2007. That application has been dismissed by the order dated 12.1.2018.
Hence this petition under Article 227 of the Constitution of India.
Having heard the counsel for the petitioners and taking
into consideration the facts recorded above, I am of the view that
this petition is completely misdirected. The remedy, if at all at this
(3 of 3)
[CW-8979/2018]
stage, for the petitioners is to impugn the judgment dated
17.8.2007 passed by the first appellate court affirming the
judgment and decree dated 4.11.1996 passed by the trial court,
by way of second appeal under Section 100 CPC.
In this view of the matter and an alternate remedy
having been available to the petitioners, which they may even now
seek to invoke subject to all just objections, I am disinclined to
interfere in this petition. It is accordingly dismissed.
The petitioners shall be free to take their legal
proceedings, as law otherwise provides.
(ALOK SHARMA),J
DILIP KHANDELWAL
2 issues framed by the court
Whether the High Court should exercise writ jurisdiction under Article 227 to set aside a disposition that excluded the petitioners after an alternative remedy of second appeal under Section 100 CPC w
Whether a petition seeking recall of an appellate judgment dismissed under Section 151 CPC is maintainable when Section 100 CPC provides a statutory appeal.
4 provisions across 2 enactments
Mahaveer Prasad Maheshwari (Through Legal Heirs)
Bhagchand (Through Legal Heirs)
Allok Sharma
Dilip Khandelwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
