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Letters Patent Appeal St.No.32011-12

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

LETTERS PATENT APPEAL ST.NO.32011 OF 2012 IN

REVIEW APPLICATION NO.37 OF 2011 IN

WRIT PETITION NO.826 OF 1991

Mahajan Gunaji Chitale

PETITIONER

VERSUS

Mukunda Rama Tipparse

and others

RESPONDENTS

Mr.S.G.Chincholkar, Advocate for petitioner.

Mr.H.I.Pathan, Advocate for respondent no.1.

(CORAM : R.M.BORDE AND

R.V.GHUGE, J.J. )

DATE : 05/07/2013

PER COURT :

1.

The petitioner is taking exception to the order passed by the

learned Single Judge in Review Application no.37/2011 in Writ

Petition no.826/1991. We have perused the order passed by the

learned Single Judge. The learned Single Judge has observed in the

order that the powers of review u/s. 114 of the Code of Civil

Procedure is in a narrow compass and the review can not be treated

as Appeal in disguise. It also further transpires on perusal of the

order that the interest of the appellant is sufficiently safeguarded. It

is stated in para no.7 and 8 of the judgment as follows :

7. The powers of review u/s. 114 of The Code of

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Letters Patent Appeal St.No.32011-12

Civil Procedure is in a narrow compass. The review can

not be treated as Appeal in disguise. The Court while

delivering the judgment in Writ Petition No.826 of 1991

has kept the rights of the parties open. It appears that

the decision in the Civil Suit filed by the applicants was

not brought to the notice of this Court when the

judgment was delivered. However, today also the

position would not change. The decree which is passed

in favour of the applicants is set aside and the matter is

now subjudiced before this Court in Second Appeal.

The Court had also observed that the proceedings

initiated by the applicants was dismissed in default,

wherein restoration of possession was claimed. The

said fact was observed by the Court in para no.six (6) of

the judgment. But the Court had observed that the

rights of the present review applicants are subjudiced in

as much as merely on the basis of the agreement of

sale, the applicants do not get any right and had kept

the rights open to move this Court after the decision in

the Civil Suit in their favour. Today the Second Appeal

is pending. The position would be the same. The

decision of the Civil Suit is not dependent on the

decision in the writ petition.

8. As today the Second Appeal is pending, the

observations made by the learned Single Judge of this

Court in the Judgment in review would apply i.e. the

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Letters Patent Appeal St.No.32011-12

right of the applicants is kept open and would be

governed depending upon the final adjudication of the

Civil Suit, now Second Appeal and the tenancy issue

which may be referred by the Civil Court.

2.

In view of the observations made by the learned Single Judge

while disposing of review application, we are of the opinion that the

grievance raised by the petitioner is properly taken care of by the

learned Single Judge. Letters Patent Appeal is devoid of any

substance, hence stands dismissed.

( R.V.GHUGE, J. )

( R.M.BORDE, J.)

khs/July 2013/lpast32011-12