1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 632 OF 2007 1. Bhika Mangalu Raut & ors. ...Appellants vs 1. Smt. Rakhmabai Laxman Bhoye & ors. ...Respondents Mr. Niranjan Mogre i/b S.B. Shetye for the appellants. Mr. Deepa S. Matwankar i/.b A.D. Avhad for the respondent Nos.1A to 1E. CORAM : V.R. KINGAONKAR, J. DATED : 16 TH APRIL, 2010 P.C. : 1. This second appeal is preferred by the transferee and the original defendant, who are unsuccessful applicants and whose application under section 144 of the Code of Civil Procedure, 1908, came to be dismissed vide the impugned judgment of the first appellate court. 2. The Second Appeal is admitted on the substantial question 2 of law as stated below : “Whether, in the facts and circumstances of the present cased, the first appellate court committed patent error while reversing the order passed by the learned trial Judge in Civil Misc. Application No.8 of 1991 whereby restitution of possession was allowed, only on the ground that the original applicant No.2 was not competent to file such an application.?” 3. The appeal is heard finally on the above substantial question of law and is being disposed of in view of the narrow compass of the controversy. 4. The facts relevant for the purpose of deciding this Second Appeal are that the respondents filed a suit for recovery of possession alleging that an agreement of sale executed in favour of the original applicant No.1 i.e. defendant was liable to be cancelled. The suit was decreed on 28th August, 1982. The original defendant No.1 sold the suit land in favour of the 3 defendant No.2 by virtue of a sale deed dated 6th August, 1982 prior to passing of the decree. It appears that the possession decree was challenged by the defendant No.1 by filing an appeal (RCA 379/1983). The original applicant No.2 was later on joined as a party after remand of the suit by the first appellate court. It appears that in the meanwhile, the decree was executed and possession was received by the respondents. The respondents thereafter filed an application for withdrawal of the suit. They asserted that since possession was received by them there was no propriety in continuation of the suit. The suit was allowed to be withdrawn unconditionally. The possession decree obviously did not remain in existence. The original defendants No.1 and 2/applicants thereafter filed application for restitution under section 144 of the Civil Procedure Code. The application was allowed by the trial court. The first appellate court reversed the order rendered by the trial court only on the ground that the applicant No.2, who is purchaser of the suit land during the pendency of the suit, had no locus standi to file the application. 4 5. Having heard learned counsel for the parties and on consideration of the impugned judgment, it is amply clear that the first appellate court did not appropriately consider the legal and factual aspects of the matter. The first appellate court held that the application was not barred by principles of res judicata because earlier similar application was rejected without going into merits of the matter. The first appellate court observed : “I, therefore, hold that the respondent No.2 had no locus standi to file an application under section 144(1) of the Code of Civil Procedure.” 6. A perusal of the copy of application for restitution reveals that the application was filed not only by original defendant No. 2/transferee, but also by the original defendant No.1. So, both of them were parties to the application. It further appears that the subsequent transferee i.e. applicant No.2 was later on joined as party after remand and as such, was competent to file such application. The application could not have been dismissed only 5 on the ground that the applicant No.2 had no locus standi to file such application. The first appellate court, therefore, committed patent error while dismissing the application on such ground. Needless to say, the impugned order is unsustainable in the eye of law. It follows, therefore, that the matter is required to be remitted to the first appellate court for due consideration of the merits and de-novo disposal of the appeal. The word “party” as used in section 144 of the Code of Civil Procedure may also include the subsequent transferee who has purchased the property during the pendency of the suit. Under these circumstances, in my opinion, the following order would meet the ends of justice. (i) The appeal is allowed. The impugned order is set aside. (ii) The matter is remanded to the first appellate court. 6 (iii) The Civil Application No.153 of 2003 stands restored to its original position with a direction to dispose of the same on its own merits. The first appellate court shall endeavour to dispose of the said appeal, as far as possible, within a period of six months. (iv) The first appellate court shall not be influenced by any observation made by this court. Second Appeal is, accordingly, disposed of. (V.R. KINGAONKAR, J.)