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Munney Khan And Others v. A.D.J., Allahabad & Others - WRIT - C No. 24920 of 2002 [2007] RD-AH 9343 (16 May 2007)


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(Court No.23)

Civil Misc. Writ Petition No.24920 of 2002

Munney Khan and others   vs. The Additional District Judge (Court No.12), Allahabad and others


In proceedings for preparation of final decree  in the form of Misc. case no.113 of 1980 - Mohammad Isa Khan and others vs. Munney Khan and others on the file of Munsif (East), Allahabad,   Ameen prepared kuras/lots.  Petitioners objected to the said lots on the ground  that they were prepared ex-parte and they were not in accordance with preliminary decree.  Objections were rejected by the trial court on 26.8.2000.  Revision was filed against the said order which was dismissed by the District Judge, Allahabad on 6.9.2001.  It appears that during pendency of revision trial court passed some order on 8.8.2001 directing  the proceedings for preparation of final decree to continue.  The order dated 8.8.2001 was also challenged in revision.  Additional District Judge (Court No.12), Allahabad dismissed the said revision on 26.3.2002.  All these orders have been challenged through this writ petition.  

However, the most important fact is that on 16.10.2001 final decree was passed.  Against the said final decree appeal is pending in the form of First Appeal no.815 of 2002.  The said appeal was accompanied by an application for delay condonation application.  Learned counsel states that appeal is pending before Additional District Judge, (Court No.12), Allahabad.

As final decree has already been passed by the trial court hence all the interim orders passed in the said proceedings have merged therein.  In an appeal against decree all the interim orders passed by the trial court which affect the merit of the decree can also be  questioned by virtue of Section 105 C.P.C.

Accordingly it is held that there is no need to decide as to whether orders passed by the trial court and challenged  in this writ petition are correct or not.  Let the validity of  all the interim orders passed by the trial court in Misc. Case No.113 of 1980 be decided by the appellate court.  The appellate court shall not in the least be impressed by the orders of the Revisional Court/District Judge/Additional District Judge passed on the revisions which were directed against interim orders passed in Misc. Case No.113 of 1980.  

Learned counsel for the petitioners states that the orders of the revisional courts will operate as res-judicata.  There is absolutely no question of application of doctrine of res-judicata when superior Court directs  the appellate court to decide the appeal on merit without being influenced by earlier orders passed in revisions.  It is reiterated that appellate court shall not in the least be influenced or take into consideration or even discuss the above two orders passed by District Judge and Additional District Judge in revisions of the petitioners.

Appellate court is directed to decide the appeal very expeditiously.  Writ petition is disposed of accordingly.




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