# Mohan Singh and others v. Nirmala Soni and others

- **Citation:** (2002) 3 ILRA 738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-08
- **Case number:** Second Appeal No. 1160 of 2002
- **Bench:** B. K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-singh-and-others-v-nirmala-soni-and-others-39952
- **Pages:** 2

## Headnote

Code of Civil Procedure section 115-
Practice and procedure - preliminary
issue
regarding
limitation
in
filing
revision raised despite of direction the
Revisional Court decided matter finally
whether is the final order can be held
bad? 'No'.

Held-Para 9

There does not appear to be any reason
that when the hearing on the entire
matter has been concluded, some issue
should be decided as preliminary issue.
The stage of deciding an issue as
preliminary issue has already passed in
the
present
case.
Therefore,
the
revisionist cannot get any advantage of
the judgment of the Division Bench of
this Court in the present case.

## Text

http://www.allahabadhighcourt.nic.in
738 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
period of 2 weeks from the date of
production of certified copy of this order
and pay him salary month to month. It
will, however, be open to the respondents
to take any further such action against the
petitioner as they are advised and may
pass appropriate order after holding
enquiry.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.10.2002.

BEFORE
THE HON'BLE B. K. RATHI, J.

Second Appeal No. 1160 of 2002

Mohan Singh and others
...Appellants
Verses
Nirmala Soni and others ...Respondents

Counsel for the Appellants:
Sri Madhav Jain
Sri Murlidhar

Counsel for the Respondents:
Sri Santosh Kumar

Code of Civil procedure Section 100
Order 47 r.7 (i) second appeal - order
passed on review application which
resulted to allow the first appeal can be
challenged in second appeal.

According to this clause, therefore, the
second appeal can be filed against the
decree and the order granting review
can also be challenged in this said
appeal.

Considering the above provisions, I am
of the view that since the first appeal
has been allowed in pursuance to the
decision of review application, therefore,
the second appeal is maintainable.

(Delivered by Hon'ble B.K. Rathi, J.)

1. The suit of the appellants was
decreed against which the first appeal was
filed, which was dismissed. Thereafter,
the application for review was moved,
which was allowed and the appeal was
also allowed by order dated 16.8.2002.
Against that judgment, the present second
appeal has been filed.

2. A preliminary objection has been
raised by Sri Santosh Kumar, learned
counsel for the respondents that the
second appeal is not maintainable and
Misc. Appeal should have been filed
under clause (w) of Rule 1 of Order 43
C.P.C.

3. As against this it has been argued
by
Sri
Murlidhar,
learned
Senior
Advocate that in the Misc. appeal under
the above provision the correctness of
order of review alone can be challenged.
That as by the same order, the first appeal
has been allowed and therefore, the
second appeal can be filed according to
the provisions of section 100 of C.P.C. In
which the correctness of the decree can
also be challenged and, therefore, have
wider scope.

4. It has been argued that the order is
a common order and therefore, the
appellants are free to avail any remedy.
That they have choosen to file this second
appeal.

5.

Learned
Counsel
for
the
appellants has also referred to the clause
(1) of Rule 7 Order 47 C.P.C., which is as
follows:

"An order of the court rejecting the
application shall not be appealable; but
http://www.allahabadhighcourt.nic.in
3 All] Mohan Singh and others V. Nirmala Soni and others
739
an order granting the application may be
objected to at once by an appeal from the
order granting the application or in an
appeal from the decree or order finally
passed or made in the suit."

6. According to this clause,
therefore, the Second appeal can be filed
against the decree and the order granting
review can also be challenged in this said
appeal.

7. Considering the above provisions,
I am of the view that since the first appeal
has been allowed in pursuance of the
decision of review application, therefore,
the second appeal is maintainable.

List the appeal in the next cause list
for hearing on admission.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.10.2002.

BEFORE
THE HON'BEL B. K. RATHI, J.

Civil Revision No. 407 of 2002

Ghaziabad Development Authority

 ...Revisionist
Verses
Asha Pusp Vihar Awas Samiti

 ...Respondents

Counsel for the Appellants:
Sri Ajay Kumar Misra

Counsel for the Respondents:
Sri Tarun Agarwala

Code of Civil Procedure section 115-
Practice and procedure - preliminary
issue
regarding
limitation
in
filing
revision raised despite of direction the
Revisional Court decided matter finally
whether is the final order can be held
bad? 'No'.

Held-Para 9

There does not appear to be any reason
that when the hearing on the entire
matter has been concluded, some issue
should be decided as preliminary issue.
The stage of deciding an issue as
preliminary issue has already passed in
the
present
case.
Therefore,
the
revisionist cannot get any advantage of
the judgment of the Division Bench of
this Court in the present case.

(Delivered by Hon'ble B.K. Rathi, J.)

1. L.A.R. No. 808 of 1998 is
pending in the court of XI th Addl..
District Judge, Ghaziabad. The revisionist
who is opposite party in the reference
moved an application to decide the issue
of
limitation
and
regarding
maintainability of the reference and
whether the reference is barred by Section
137 of the Indian Limitation Act as
preliminary issue. The trial court has
refused to decide this issue as preliminary
issue. Aggrieved by it, the present
revision has been preferred.

2. I have heard Sri A.K. Mishra,
learned counsel for the revisionist and Sri
tarun Agarwala, learned counsel for the
opposite party.

3. It has been argued by Sri A.K.
Mishra that the award was given by the
collector on 27.7.1991. Reference in the
court was made under section 18 of the
Act in the yea, 1998 i.e. after seven years,
that, therefore, clearly the reference is
barred by time and is not maintainable. It
is further contended that the request for
reference under section 18 can be made