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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

MISC. CIVIL APPLICATION (REVIEW) NO. ______ OF 2021

IN
SECOND APPEAL NO. 00 OF 2011
(Decided on 02 August, 2017)

IN THE MATTER OF:

APPLICANT: 1 A S/o Z
Aged 47 Years, Occu.: Service,

APPLICANT: 2 B w/o Z
Aged 80 Years, Occu.: Household,

APPLICANT: 3 C D/o Z
Aged 45 Years, Occu.: Household

APPLICANT: 4 D D/o Z
Aged 43 Years, Occu.: Household

All are LR’s of Ori. All Resident of Mahal, Nagpur-

Plaintiff in RCS & LR’s of
440032
Appellant in First
Appeal.

Versus
RESPONDENT: 1 D S/o G,
Ori. Defendant No.1 in Aged about 58 Years, Occupation:
RCS & Respondent No.1
Service, Mahal, Nagpur - 440032
in First Appeal
RESPONDENT: 2 F w/o D,
Ori. Defendant No.2 in Aged about 00 Years, Occupation:
RCS & Respondent No.2
Household, R/o Itwari, Nagpur-
in First Appeal
440032
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MISC. CIVIL APPLICATION (REVIEW) OF THE

JUDGMENT DATED 02.08.2017 PASSED BY THIS
HON’BLE COURT IN SECOND APPEAL NO. 00 OF 2011.

MOST RESPECFULLY SHOWETH:

The Applicant’s above named most humbly and

respectfully submit as under:

1) THAT, the Applicant’s above named i.e. legal heirs of

Z who was the respondent in Second Appeal before
this Hon’ble Court are invoking review jurisdiction
vested in it, inter alia being aggrieved by the
judgment dated 02.08.2017 passed by this Hon’ble
Court in Second Appeal No.00 of 2011, thereby this
Hon’ble Court set aside judgment dated 30.09.2010
passed by the Learned District Judge, Nagpur in
Regular Civil Appeal No.01 of 2003 and permitted the
applicant to take such steps as permissible in law to
prosecute the proceeding in First Appeal before the
Learned District Judge, Nagpur. It is submitted that
the Applicant is beseeching kind indulgence of this
Hon’ble Court only to the extent of liberty given to the
applicant and only seeking modification/ direction to
remand back the Regular Civil Appeal No.1 of 2003
before the Learned District Judge, Nagpur, as the
Code of Civil Procedure is silent on restoration of First
Appeal in absence of specific direction of remanding
back by the Second Appellate Court. The copy of
impugned judgment dated 02.08.2017 passed by this
Hon’ble Court in Second Appeal No.00 of 2011 is
annexed as ANNEXURE NO. - “A”.
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2) THAT, the brief facts leading to filing of the present

Miscellaneous Civil Application for review of judgment
dated 02.08.2017 passed by this Hon’ble Court in
Second Appeal No.00 of 2011 are as follows:

2.1) THAT, the Applicants above named are legal

heirs of Z who was the Sole Original Plaintiff in
Regular Civil Suit No.175 of 1988 and the Sole
Original Appellant in First Appeal i.e. Regular Civil
Appeal No.15 of 2003 and finally the Respondent in
Second Appeal No.00 of 2011 before this Hon’ble
Court. The predecessor of the Applicants i.e. Z vide
Regular Civil Suit No.1755 of 1999 have filed a Suit
for declaration, Mandatory and Perpetual Injunction
before the Learned Civil Judge, Junior Division,
Nagpur against the defendants for disturbing his
easementary right of air and light from the eastern
and southern side of his house through windows and
the predecessor of the Applicants being owner and
possessor of the house bearing Municipal Corporation
No.00 situated at Mahal, Nagpur and the said house
was constructed before 80 years and it is inherited
from ancestral and the applicants alike their
predecessor are still using adjoining lane of the said
house for the purpose of repairing southern and
eastern side of wall. The predecessor of the applicants
are seeking injunction against the respondents to do
not make construction touching the said southern and
eastern side of wall of the said house. It is submitted
that the said Regular Civil Suit No.175 of 1988 was
dismissed by the 7TH Joint Civil Judge, Junior Division,
Nagpur vide Order dated 30.01.2003. The true copy of
order dated 30.01.2003 passed by the 7 TH Joint Civil
Judge, Junior Division, Nagpur in Regular Civil Suit
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No.175 of 1988 is annexed as ANNEXURE NO. “B”.

The predecessors of the Applicant have filed Regular
Civil Appeal No. 15 of2003 before the Learned District
Judge, Nagpur against the order dated 30.01.2003
passed by the 7TH Joint Civil Judge, Junior Division,
Nagpur in Regular Civil Suit No.175 of 1988. The true
copy of the Regular Civil Appeal No. 15 of 2003 before
the Learned District Judge is annexed as ANNEXURE
NO. “C”.

2.2) THAT, during pendency of Regular Civil Appeal

No. 15 of 2003 before the Learned District Judge,
Nagpur, the predecessors of the applicant i.e. the
original appellant died on 24.12.2009. It is submitted
that the legal heirs of the appellant Z was not brought
on record and the Learned Adhoc District Judge-1,
Nagpur allowed the first appeal filed by the
predecessors of the applicant and the order dated
30.01.2003 passed by the 7TH Joint Civil Judge, Junior
Division, Nagpur in Regular Civil Suit No.1755 of 1999
was set aside vide order dated 30.09.2010. The copy
of order dated 30.09.2010 passed by the Learned
Adhoc District Judge-1, Nagpur in Regular Civil Appeal
No. 15 of2003 is annexed as ANNEXURE NO. “D”.

2.3) THAT, the Respondent No.1 and No.2 herein

preferred Second Appeal No.00 of 2011 before this
Hon’ble Court against the order dated 30.09.2010
passed by the Learned Adhoc District Judge-1, Nagpur
in Regular Civil Appeal No. 15 of2003. The true copy
of the Second Appeal No.00 of 2011 before this
Hon’ble Court by the the Respondent No.1 and No.2 is
annexed as ANNEXURE NO. “E”. Thus, this Hon’ble
Court vide impugned order dated 02.08.2017 in
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Second Appeal No.00 of 2011, set aside the judgment

dated 30.09.2010 passed by the Learned District
Judge, Nagpur in Regular Civil Appeal No.158 of 2003
and permitted the applicant to take such steps as
permissible in law to prosecute the proceeding in First
Appeal before the Learned District Judge, Nagpur.

3) THAT, the present review application need to be

allowed on the following grounds:

3.1) BECAUSE, this Hon’ble Court in view of the

impugned oral judgment dated 02.08.2017 in Second
Appeal No.00 of 2011 while relying on the judgment
of the Hon’ble Supreme Court in “Amba Bai & others
Vs. Gopal & others [AIR 2001 SC 2003]”, held that
the decree passed by the first appellate Court was a
nullity and accordingly this Hon’ble Court set aside the
judgment dated 30.09.2010 passed by the Learned
District Judge, Nagpur in Regular Civil Appeal No.158
of 2003. It is submitted that this Hon’ble Court did not
gone into merits or findings of the judgment dated
30.03.2010 passed by the Learned District Judge in
Regular Civil Appeal No.158 of 2003 and disposed of
the Second Appeal No.00 of 2011 on preliminary
point. Thus, this Hon’ble Court should have remanded
the case before the Learned District Judge for fresh
adjudication without affecting the stage of the case as
per Order 41 Rule 23 of the Code of Civil Procedure,
1908. Although, this Hon’ble Court permitted the
applicant to take such steps as permissible in law to
prosecute the proceeding in First Appeal before the
Learned District Judge, Nagpur but the Code of Civil
Procedure is silent on provision of restoration of First
Appeal in absence of specific direction of the Appellate
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Court to remand back matter. Thus, this Hon’ble Court

vide impugned order dated 02.08.2017 in Second
Appeal No.00 of 2011 left the applicants remediless
while their grievance subsists. It is specifically
submitted that the abetment took place in Regular
Civil Appeal No.15 of 2003 before the Learned District
Judge. Thus, the applicant cannot file fresh first
Appeal against the order dated 30.01.2003 passed by
the 7TH Joint Civil Judge, Junior Division, Nagpur in
Regular Civil Suit No.1755 of 1999 in view of joint
reading of Order 22 Rule 9 and Rule 11 of the Code of
Civil Procedure. Since, the applicants herein kept
remediless while their grievance subsists. Thus, the
impugned order dated 02.08.2017 in Second Appeal
No.00 of 2011 passed by this Hon’ble Court need to
be reviewed to the extent of remanding back to the
Learned District Judge, Nagpur for deciding matter
afresh.

3.2) BECAUSE, it is submitted that no prejudice was

caused to the applicants vide order dated 30.03.2010
in Regular Civil Appeal No.158 of 2003 before the
Learned District Judge. Further, it is submitted that
this Hon’ble Court has not gone into the intention of
legislature in enacting law relating to bringing legal
heirs on record. It is submitted that the anxiety of the
Court should be whether those likely to be affected by
the decision in the proceeding were before the Court
having full opportunity to canvass their case. Thus,
the impugned judgment dated 02.08.2017 passed by
this Hon’ble Court in Second Appeal No.00 of 2011
completely comes in teeth of judgment passed by the
Hon’ble Supreme Court in “Jayarama Reddy & Anr
vs Revenue Divisional Officer & Land  1979 AIR
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1393”, where it has been held that “it has to be

appreciated that a decree against a dead person is not
necessarily a nullity for all purposes. It will be
sufficient to say that such a decree has been held to
be a nullity because it cannot be executed against his
legal representative for the simple reason that he did
not have a full opportunity of being heard in respect
of it, and the legal representative cannot be
condemned unheard. So if a respondent to an appeal
dies, and the appeal abates because of the failure to
bring his legal representative on the record within the
time limited by law, and the appellate court loses
sight of that development or ignores it, it will still be
permissible for the court hearing the appeal to bring
his legal representative on the record on an
application to that effect and to examine any
application that may be made for condonation of the
delay. It is also permissible, and is in fact the
common practice, to remand the case for disposal
according to law to the court in which it was pending
at the time of the death of the deceased party. The
law has therefore provided, and accepted, modes for
reopening and hearing the appeal in such cases.”
Thus, the impugned order dated 02.08.2017 in
Second Appeal No.00 of 2011 passed by this Hon’ble
Court need to be reviewed in view of the judgment of
Hon’ble Supreme Court in “Jayarama Reddy & Anr
vs Revenue Divisional Officer & Land (Supra)”. 

3.3) BECAUSE, if the decree passed in favor of dead

person or against the said dead person, whether by all
mean nullity shall need to be judge as per the facts
and circumstances of the case. It is submitted that if
the decree is passed in favour of any a party and if
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that person died before judgment or after judgment

has no significance as decree could be inherited and
same can be executed by their legal representative as
the provision of Order 22 of Code of Civil Procedure
has no effect on execution proceedings.

Hence, in view of above submission and contentions,

the present application to review as the grave error is
apparent on the face of the impugned order dated
02.08.2017 passed by this Hon’ble Court in Second Appeal
No.00 of 2011. Thus, this review application may be
allowed in the interest of justice.

4) THAT, the applicants submits that they are still in

physical possession of the suit premises and yet the
respondents have not started any construction activity
and the effect of judgment dated 30.03.2010 passed
by the Learned District Judge in Regular Civil Appeal
No.15 of 2003 is still in continuance despite being set
aside of same by Hon’ble Court in Second Appeal
No.00 of 2011 vide judgment dated 02.08.2017. It is
submitted that there is unintentional delay of 993
days in preferring this application to review the
impugned order dated 02.08.2017 passed by this
Hon’ble Court in Second Appeal No.00 of 2011 for
which the applicants is filing separate application for
condonation of delay and same need to be condone in
the interest of justice. The applicants have
meticulously, diligently explained delay in filing the
present review. Thus, the applicants have no other
alternative efficacious remedy that to approach before
this Hon’ble Court for redressal of their grievance as
the error is on face of impugned order in view of facts
and circumstances mentioned above. Therefore, this
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Hon’ble Court may be kindly be allowed to review

order dated 02.08.2017 passed by this Hon’ble Court
in Second Appeal No.00 of 2011 in its entirety in the
interest of justice.

5) THAT, the applicants have not moved any other

application on this subject matter before this Hon’ble
Court or before the Hon’ble Supreme Court of India, in
the matter any time before.

6) Hence, this Review Application.

PRAYER

It is therefore mot humbly and respectfully prayed

before this Hon’ble Court may kindly be pleased to:

I. Allow the present Review Application and further be

pleased to review the impugned judgment dated
02.08.2017 passed by this Hon’ble Court in Second
Appeal No.00 of 2011 (ANNEXURE NO. A) and modify
the last para of the said judgment and remand back
the Regular Civil Appeal No.15 of 2003 before the
Learned District Judge, Nagpur without affecting stage
of the proceeding for adjudication in the interest of
justice.;

II. Stay the effect of the impugned judgment dated

02.08.2017 passed by this Hon’ble Court in Second
Appeal No.00 of 2011 (ANNEXURE NO. A) and direct
status quo to be maintain during pendency of present
proceeding and direct the respondents to do not make
construction touching the southern and eastern side of
wall of the said house till pendency of present
proceeding.;
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III. Call for records of the in Second Appeal No.00 of 2011

before this Hon’ble Court.

IV. Grant ad-interim relief in terms of Prayer Clause (II) &

(III);

V. Grant any other relief, which may be deems fit in the

facts and circumstances of the present case and in the
interest of justice.

APPLICANT

NAGPUR COUNSEL FOR APPLICANT

DATED: 10/03/2021

ADVOCATE