GULAM MAHADE Vs. RAMAKRISHNA MUDALI
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Subrahmania Aiyar, J -
(1.) I am unable to agree with the contention urged on behalf of the respondents that the order passed by Moore, J., and myself granting the-review was ultra vires. In the first place, I am by no means satisfied that it is not open to this Court to entertain an application for reivew in a second appeal on the ground of discovery of documentry evidence. Even if it were otherwise, the circumstance that the order granting the review in the present case was granted on a ground which would not support it, does not render the order ultra vires (compare L.R. 3 Indian Appeals 221). The respondent had notice of the-application, and, not having appeared to oppose the application, must be held to be bound by the order.
(2.) As to the question on the merits, we must accept the finding of the District judge. Even if Exhibit F were issued with reference to the mosque in question it would be impossible to hold that the institution is governed by the clause therein as to appointment of a successor to the Muthavalli in the absence of any evidence that that clause was at any time acted upon during the two centuries that have elapsed since the date of the exhibit.
(3.) I would, therefore, dismiss the second appeal with costs. Davies, J.;
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