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2016 DIGILAW 1619 (RAJ)

Ramotwaar, S/o late Sh. Gopiram v. Shyamlal, S/o late Sh. Tarachand

2016-11-16

DEEPAK MAHESHWARI

body2016
ORDER : 1. Heard learned counsels on the review petition and also perused the relevant record. 2. Learned counsel for the petitioner (appellant/defendant) has submitted that the order under review passed on 18th July, 2016 is based on the ground that two adverse contentions were being pursued by him; one, on the ground of title over the disputed property and second, on the basis of adverse possession. He submits that this is not the case as is apparent on the perusal of the memo of appeal. He further submits that the order under review appears to have passed under the impression that on 28th January, 2015, the counsel for appellant sought some time to seek instructions from his client about the period for vacating the suit land whereas on the very next date of hearing, i.e., on 3rd February, 2015, learned counsel appearing for the appellant informed the Court that he wants to argue the matter on merits, for which liberty was also given to him on the earlier date of hearing. He has further stated that vide order dated 13th April, 2016, the interim order was continued till further orders in presence of both the parties. He has also emphasized that the interim order came to be passed after hearing both the parties. He contends that when vide order dated 13th April, 2016, the interim order was continued till further orders and no application was filed for vacating that order by the respondent, no occasion was available to vacate the interim order dated 3rd February, 2015 which had been continued till further orders. 3. Learned counsel appearing for the non-petitioners (respondents) submits that the application seeking review of the order is not maintainable as per the provisions contained in Section 114 of Code of Civil Procedure and Order 47 Rule 1 of Code of Civil Procedure as well. He further submits that as per the facts mentioned in the written statement submitted by the appellant, he is trying to lay his claim on the suit property on the basis of the title on the strength of an agreement to purchase the property from Tarachand, who happens to be the father of the respondent and at the same time, he has put up his case on the basis of adverse possession. He submits that in view of such rival contentions, this Court had passed the order dated 18th July, 2016 which is justified and does not need any review. 4. Having considered the rival contentions raised by the learned counsels and having gone through the relevant orders mentioned hereinabove, it is apparent that after admitting this appeal in presence of learned counsels for both the sides, the execution proceedings were ordered to be stayed vide order dated 3rd February, 2015. This order was extended on various occasions and thereafter, vide order dated 13th April, 2016 in presence of both the parties, this interim order was continued till further orders. The fact of having passed this order dated 13th April, 2016 was never apprised to this Court while passing the order on 18th July, 2016. The order under review was certainly passed on the assumption that the order dated 13th February, 2015 is continuing on interim basis. 5. So far as the maintainability of this review petition is concerned, the provisions contained in Order 47 Rule 1 of Code of Civil Procedure are explicitly clear that when a decree or order is passed on account of some mistake or error apparent on the face of the record or for any sufficient reason, the party aggrieved may apply for a review of the judgment of the Court which passed the decree or order. 6. Leaving apart the controversy, whether the claim of appellant was based on rival contentions of adverse possession as well as title, which requires thorough examination while deciding this first appeal on merits, it is apparent that the order passed on 13th April, 2016 was not in conscious consideration of this Court while passing the order dated 18th July, 2016. As the interim order dated 3rd February, 2015 had already been continued till further orders and no application for vacation of the same was ever filed, the said interim order dated 3rd February, 2015 was not warranted to have been vacated or discontinued. 7. In view of above, this review petition deserves and is accordingly allowed and the order dated 18th July, 2016, so far as it relates to discontinuance of the order dated 3rd February, 2015 is concerned, is recalled. 8. Review Petition as well as Stay Petition stand disposed of accordingly.