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Narayan Purshottam Gargote Vs. Laxmibai Datto Bhagvan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 92 of 1913
Judge
Reported inAIR1914Bom1; (1914)16BOMLR189
AppellantNarayan Purshottam Gargote
RespondentLaxmibai Datto Bhagvan
Excerpt:
civil procedure code (act v of 1903), order xlvii, rule 1-review-appeal-jurisdiction to hear review application not taken away by presentation of appeal.;where an application for review has been presented by a party and a rule nisi granted by the court, the jurisdiction of the court to hear the review application is not taken away if an appeal is afterwards presented from the decree under review.;chenna reddi v. peddaobi reddi (1909) i.l.r. 32 mad. 416 followed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit..........the registrar, while filing the appeal, that he wanted the appeal to be kept pending until his review application to the lower appellate court was disposed of.3. the district court has rejected the review application on two preliminary grounds without going into the merits of the application. one1 of the grounds is that certain copies which ought to have been filed with the application were not filed, and that the application could not, therefore, be entertained. without expressing any opinion as to whether it was necessary to file those certified copies with the application, i am clearly of opinion that when the court admitted the application on the 12th of october with full knowledge of the fact that the copies were not filed along with the application, the omission was.....
Judgment:

Shah, J.

1. This application arises under the following circumstances :-

2. The District Court of Satara having decided Appeals Nos. 67 and 70 of 1911 on its file against the plaintiff, he presented an application for review to that Court on the 10th October 1912. A rule nisi was granted on the 12th October and on the 14th of October he filed a second appeal in this Court against the decree of the lower appellate Court. He also informed the Registrar, while filing the appeal, that he wanted the appeal to be kept pending until his review application to the lower appellate Court was disposed of.

3. The District Court has rejected the review application on two preliminary grounds without going into the merits of the application. One1 of the grounds is that certain copies which ought to have been filed with the application were not filed, and that the application could not, therefore, be entertained. Without expressing any opinion as to whether it was necessary to file those certified copies with the application, I am clearly of opinion that when the Court admitted the application on the 12th of October with full knowledge of the fact that the copies were not filed along with the application, the omission was sufficiently condoned. It would not, therefore, be right to disallow the application on that ground.

4. The second ground, which has been the main contention between the parties on this application, is that the applicant having preferred an appeal to this Court, the lower Court had no jurisdiction to proceed with the application for review. This point has been fully argued before us and several cases have been cited. I do not propose, however, to discuss the cases in detail. It is common ground that at the date of the presentation the application was in order and that the lower Court had jurisdiction to entertain it. It is argued, however, that that jurisdiction came to an end as soon as the plaintiff preferred a second appeal to this Court. The only decision which covers this point is the case of Chenna Reddi v. Peddaobi Reddi I.L.R. (1909) Mad, 416. On a full consideration of the arguments on either side of the question, I have come to the conclusion that this Full Bench decision should be followed. Accepting that view it is clear that the learned District Judge was not right in rejecting the application on the preliminary ground raised by the defendants. There is no decision cited to us except the case of Ramanadhan Chetti v. Narayanan Chetty I.L.R. (1904) Mad, 602 (which in terms has been overruled by the decision in Chenna Reddi's case), that can be said to be in any way inconsistent with the view taken by the Madras High Court. In a matter of this kind, I think, it is desirable that the practice of different High Courts should be uniform as far as possible, and I see no reason whatever to think that the practice in this presidency has been in fact different or that it ought to be different. Apart from the decided cases, I think, on a fair reading of the provisions of the Civil Procedure Code relating to this point, it is clear that an application for review can be made before any appeal is filed by the party and I know of no reason why an application, which was perfectly competent at the date of the presentation, should nut be disposed of on the merits. There certainly is no express provision in the Code which renders the application incompetent on the mere presentation of an appeal by the same party at any subsequent time. In my opinion there is no practical inconvenience so long as the appeal is not prosecuted during the pendency of the review application. The present case Narayan fairly illustrates that it is only by following the practice, which has been sanctioned by the Madras High Court, that the remedy by way of review can be secured to the aggrieved party in an appropriate case, without requiring him to jeopardize his right of second appeal.

5. On these grounds the rule should be made absolute and the lower Court directed to dispose of the application on the merits.

6. Costs throughout to be costs in the application.

Heaton, J.

7. I concur in the order proposed. It does not seem to me that this matter involves any really important legal principle or that for practical purposes it is anything more than a matter of practice. The practice, which, as I understand, at present is followed, is that which was followed by the applicant in this case. He applied for a review first and afterwards he appealed. Regarding this, as a matter of practice, I can see nothing in it to object to, nothing that is in any way inconvenient to, or inconsistent with, the proper, ordinary administration of justice. Therefore I see no reason to press my own view of the meaning of Rule 1 of Order XLVII.

8. I should only like to add this: that I think there is great force in the reasoning of the District Judge. Personally also I am not at all satisfied that the conclusion reached by the Full Bench of the Madras High Court in the case of Chenna Reddi r. Peddaobi Reddi I.L.R. (1909) Mad, 416 really correct. But for the reasons I have stated, I consider my own personal opinion in these matters as of no particular importance. Therefore I concur in the order which my learned colleague has proposed.


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