IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR. O R D E R Tejmal and another Versus Chetan Lal and others S.B. CIVIL WRIT PETITON NO.1451/2008. Date of order :- 18/2/2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Singhi for the petitioners. ***** The writ petition has been filed against the order dated 30/11/2007 whereby the learned appellate court while dealing with the application submitted by the petitioner has directed that the said application shall be considered and decided along with the main appeal itself. In doing so, reliance has been placed upon the judgment of Hanuman Prasad Vs. Jugal Singh in 2002(1) C.D.R. 113 (Raj . ) wherein a view was taken by this court on consideration of judgment of Supreme Court in N.Kamalam (Dead) & Anr. Vs. Ayyasamy & Anr. : 2001 AIR SCW 2907 that such application should be decided within appeal itself and not in view of the order of the appellate court, in that case dismissing the application for hearing of the main appeal was set-aside. SBCWP NO.1451/08. Learned counsel for the petitioner has argued that in view of added clause (aa)(2) of Rule 27 of Order 41 CPC, the application was required to be decided earlier than the decision of the main appeal itself. It was argued that if eventually application is allowed, that would necessitate the evidence to be led by the petitioner and consideration of the application along with appeal cannot be therefore justified. Learned counsel relied on the judgment of the Supreme Court in Jayaramdas & Sons Vs. Mirza Rafatullah Baig and others : (2004) 10 SCC 507 in support of his argument. Having heard learned counsel for the petitioner and perused the impugned order and having gone through the judgments on which reliance has been placed by the learned trial court, I find that this Court in Hanuman Prasad supra in fact not only relied on two judgments of the Supreme Court but also reiterated the earlier view of this Court in Sandhu Ram Vs. Ghasi Ram : 2001(1) W.L.C. (Raj.) 596 in which it was held that in normal circumstances, application under Order 41 Rule 21 CPC deserves to be disposed of at the time of hearing of the appeal itself and, therefore, order of the appellate court hearing on appeal shall not sustainable. This court therefore in Hanuman Prasad reiterated the same view. Decision of application earlier than decision of appeal may not be SBCWP NO.1451/08. necessarily result in acceptance of such application. In my view, trial court has not committed any error in directing the application to be decided along with the appeal. The judgment of the Supreme Court referred to by the learned counsel for the petitioner does not in any manner help the petitioner. The writ petition is dismissed being distinguishable on facts. (MOHAMMAD RAFIQ), J. anil SBCWP NO.1451/08.