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Daso Keshav Panohbhavi Vs. Karbasappa Kariyappa Mudhol - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Appeal from Order No. 64 of 1923
Judge
Reported inAIR1926Bom121; (1925)27BOMLR1446; 94Ind.Cas.591
AppellantDaso Keshav Panohbhavi
RespondentKarbasappa Kariyappa Mudhol
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), order xliii, rule (1) (w), order xlvii, rule 7 - review-order granting review-appeal against order.;an appeal lies against an order granting a review, under order xliii, rule (1) (to), of the civil procedure code, quite irrespective of the qualifications contained in order xlvii, rule 7, of the code. ;hari charan saha v. baran khan (1914) i.l.r. 41 cal. 746 dissented from. - - tripura, charm kal v......clause (w), which provides in general terms for an appeal against ' an order under rule 4 of order xlvii granting an application for review.' it has, on at least three occasions, been held by this court that order xliii, rule 1, clause (w), must be road with, and subject to, rule 7 of order xlvii. we refer to the unreported decisions in jugernath perahad singh v. rum autar singh; tripura, charm kal v. sorashi bala and surendra nath taludar v. sita nath dass gupta. following i hose three decisions, we must hold that this appeal is incompetent and should be dismissed with costs. 3. in my opinion even if order xliii, rule 1, clause (w), is read with order xlvii, rule 7, the only effect of that rule is to enumerate certain grounds on which an order granting a review may he objected to. it.....
Judgment:

Norman Macleod, Kt., C.J.

1. [His lordship after setting out the facts, proceeded :] The first point taken in the appeal is that the appeal is not competent. Under Order XLIII, Rule 1, Clause (w), an appeal lies against an order passed under Order XLVII, Rule 4, granting an application for review. It was argued, however, that the grounds of appeal are limited by the terms of Order XLVII, Rule 7. That rule 7 was Section 629 in the Code of 1882. Under that Code there was no right of appeal against an order granting a review, only as provided for by Section 629-such an order might be objected to on the grounds stated therein. When by the Code of 1908 a right of appeal against an order granting a review was given, it would appear that the provisions of Section 629, which became Order XLVII, Rule 7, were not sufficiently reconsidered. Once the right of appeal was given that right could only be restricted by direct prohibition. If Order XLVII, Rule 7, had directed that an appeal against an order granting an application for review, which lay by virtue of Order XLIII, Rule 1, cl (w), would not be permitted except on the! grounds mentioned in that rule, then the right of appeal already granted would have been restricted. But Order XLVII, Rule 7, only says that an order granting an application for review may be objected to on certain grounds. The result of making such an order appealable was that Order XXVII, Rule 7, became superfluous. It was no longer necessary to say that an order refusing an application for review was not appealable, while an order granting an application for review had been made an . appealable order.

2. In Hari Charan Saka v. Baran Khan I.L.R. (1914) Cal. 746 the contrary was hold. The Judges there said (p. 747):-

Order XLVII, Rule 7, of the Civil Procedure Code provides that an order rejecting an application for review shall not be appealable, but that an order granting such an application may be objected to on certain grounds. None of those grounds can be asserted in this case, and it is quite clear that, in so far as rule 7 of Order XLVII goes, no appeal lies. But it is contended that an appeal lies under Order XLIII, Rule 1, Clause (w), which provides in general terms for an appeal against ' an order under rule 4 of Order XLVII granting an application for review.' It has, on at least three occasions, been held by this Court that Order XLIII, Rule 1, Clause (w), must be road with, and subject to, Rule 7 of Order XLVII. We refer to the unreported decisions in Jugernath Perahad Singh v. Rum Autar Singh; Tripura, Charm Kal v. Sorashi Bala and Surendra Nath Taludar v. Sita Nath Dass Gupta. Following I hose three decisions, we must hold that this appeal is incompetent and should be dismissed with costs.

3. In my opinion even if Order XLIII, Rule 1, Clause (w), is read with Order XLVII, Rule 7, the only effect of that rule is to enumerate certain grounds on which an order granting a review may he objected to. It cannot exclude all other grounds, and as I have pointed out on a strict construction of the two Orders, Order XLVII, Rule 7, has become superfluous,

4. I may add that even assuming that an appeal was not competent the Court would have entertained an application under Section 115 of the Code.

Madgavkar, J.

5. [His lordship after dealing with facts remarked ] As regards Order XLIII, Rule 1, Clause (w), and Order XLVII, Rule?, I entirely concur with what has fallen from my Lord the Chief Justice. Order XLIII, Rule 1, Clause (w), is a new provision, and was perhaps not in the minds of the authors when they to produced the old Section 629 in the form of Order XLVII, Rule 7.

6. I agree, therefore, with the order proposed.


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