1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.16 OF 2002 IN MISCELLANEOUS PETITION NO.52 OF 2001 IN TESTAMENTARY AND INTESTATE PETITION NO.1364 OF 1999 Hasmukh Lakhamshi Shah and ors. ..Petitioners V/s. Mahesh Mohanlal Dedhia and ors. ..Respondents Mr.E.P.Bharucha, Senior Counsel a/w.Mr.Kevic Setalwad, Firoz Bharucha & Mr.Dhiren Shah i/b.M/s.Vimla & Co., advocate, for the petitioners CORAM : S.J.VAZIFDAR, J. DATE : 29TH FEBRUARY, 2008 P.C. . The petitioners seek a review of an order dated 24th January, 2002 passed by Mrs.Justice K.K.Bam (as her Ladyship then was) in the above Miscellaneous Petition No.52 of 2001. 2. The petitioners' case in a nutshell is this. The petitioners are brothers. Respondent No.2 is the nephew of one Madan Versi Dedhia – he 2 is the son of Madan Versi Dedhia's brother. Respondent No.1 is the second respondent's son. The property which is the subject matter of this petition belonged to the said Madan Versi Dedhia upon whose death on 18th October, 1984, his widow Moghiben inherited the said property under a Will dated 6th September, 1984. Under the said Will, Moghiben was the sole beneficiary of the estate of her deceased husband. Moghiben sold the property to the petitioner by an agreement of sale dated 22nd June, 1985 and received the entire consideration thereunder. Moghiben also executed a Deed of Conveyance dated 5th January, 1989. Moghiben also executed a special Power of Attorney on 5th January, 1989 in favour of the petitioners' father for lodging and admitting execution of the conveyance for the purpose of registration. The deed of conveyance was lodged for registration on 28th February, 1989 which was registered on 21st July, 1995. Thereafter, Moghiben executed a declaration- cum-Confirmation dated 4th January, 1990 which was also registered before the Sub-Registrar of Assurances in the presence of the 2nd respondent, 3 who identified Moghiben. 3. Mr.E.P.Bharucha set out in considerable detail. The steps which, according to him, the respondents have adopted to dishonestly deny the agreement and to usurp the property. The final step, according to the petitioners, was by the respondents filing the above Testamentary and Intestate Petition No.1364 of 1999 for letters of administration with an alleged Will annexed thereto dated 2nd October, 1984. Mr.Bharucha also pointed out in detail the petitioners' case that this petition, apart from being mala fide, was contrary to and inconsistent with the proceedings adopted by the respondents including the proceedings in the City Civil Court at Hyderabad, in this Court and before the review authorities. 4. For instance, he stated that on 10th April, 1996, the respondent filed Pauper Petition in Testamentary Petition (L) No.282 of 1996 seeking letters of administration of the said Will dated 2nd October, 1984. The stand taken in T.P.(L) No.282 4 of 1996 is contrary to the stand taken in the above petition. 4(A). By an order dated 19th June, 2001, the above T & I.J.Petition No.1364 of 1999 was allowed and the respondents, who are the petitioners therein, were granted letters of administration with the said Will dated 2nd October, 1984 annexed thereto. 4(B). The review petitioners were not served with a citation. On coming to know of the order dated 19th June, 2001, they filed Miscellaneous Petition No.52 of 2001 to set aside the said order dated 19th June, 2001. This petition was dismissed by the order sought to be reviewed dated 24th January, 2002. 5. I find myself prevented from even considering this Review Petition in view of the fact that against the order dated 24th January, 2002, the review petitioners had filed an appeal being Appeal (L) No.499 of 2002. The appeal was rejected by an order dated 3rd June, 2002 passed by 5 the Registrar(O.S.)/Prothonotary and Senior Master of this Court under Rule 986 of the Bombay High Court (Original Side) Rules for non-removal of office objections. 6. It appears that thereafter, the petitioners were advised to file this Review Petition. However, in my view, the petitioners, having filed an appeal, ought to have pursued the same by seeking restoration thereof. In the absence of any order from the Appeal Court, it would not be open to me to consider this Review Petition. 7. I must clarify in fairness to Mr.Bharucha that I do not for a moment suggest that grounds for review have not been made out or that there is nothing to be considered in this Review Petition. If a review is maintainable, it would not have been necessary for me to consider the detailed submissions made by him. 8. I appreciate that the review petitioners are caught in a web of technicalities. I also 6 appreciate that the petitioners have not made an application for restoration of the appeal in view of the pendency of this Review Petition. That however, is a matter to be considered in the appeal. 9. In the circumstances, Review Petition is dismissed as not being maintainable. (S.J.VAZIFDAR,J.)