1. This revisional application challenges the validity of the order passed by the learned Judge allowing the Opponent to withdraw his appeal with liberty to file a fresh suit and it is urged by Mr. Sukhtankar that in granting leave Under Order 23, Rule 1(2) (b), of the Code the learned Appellate Judge has clearly assumed jurisdiction not vested in him because the defect alleged by the Opponent and accepted by the learned Judge cannot be said to amount to a formal defect within the meaning of the said rule. This contention appears to me to be well-founded and must be accepted.

The material facts are very few. The property in suit originally belonged to one Nimbalkar. Nimbalkar created three mortgages over this property and other properties in 1918, 1921 and 1926. The mortgagee in all the three cases was one Jambappa Awate. The mortgagee brought a suit on these three mortgages to recover the mortgage amount in 1931. This suit was decreed in 1851, the mortgaged property was put to sale and purchased by the petitioner.

Meanwhile Nimbalkar sold this property to Ghorpade on 14-8-1933. This was pending the mortgage suit. It would appear that the Opponent obtained a decree for the pa