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2002 DIGILAW 1455 (ALL)

MOHAN SINGH v. NIRMALA SONI

2002-10-08

B.K.RATHI

body2002
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 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. .