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Mallikar Junappa Kalyanshetti Vs. Rudrasetti Sangasetti Patil Mahagamkar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 32/3 of 1955
Judge
Reported inAIR1959AP305
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 43, Rule 1 - Order 47, Rules 2, 4 and 7
AppellantMallikar Junappa Kalyanshetti
RespondentRudrasetti Sangasetti Patil Mahagamkar and anr.
Appellant AdvocateB.V. Subbarayudu, ;B.V. Narasimham and ;A.V. Ramanujam, Advs.
Respondent AdvocateV.S. Ashok and ;K. Venkatachari, Advs.
DispositionAppeal dismissed
Excerpt:
.....1 (w) of code of civil procedure, 1908 - aggrieved by subordinate court's order defendants filed review application - composite order of granting review and forthwith rehearing case passed - review order went against plaintiff - plaintiff appealed before high court under order 43 rule 1 (w) - appeal not allowed as order 43 rule 1 (w) was subject to order 47 and appeal against review order can be admitted only on grounds set out in order 47 - composite order of granting review and forthwith rehearing case was a mere irregularity and not material irregularity in exercise of jurisdiction - appeal not admitted - plaintiff's request to convert appeal into revision turned down. - - the learned advocate contended that inasmuch as the subordinate judge had failed to pass an order in..........according to the plaintiff were hundies. amongst others, one of the defences raised was that the suit documents were promissory notes payable otherwise than on demand that inasmuch as they were not duly stamped, they were inadmissible in evidence on which no suit could lie. of the seven issues adjusted in the case, [he first issue was :'are the suit documents promissory notes? arc they inadmissible in evidence?this issue- was taken up for decision on 4th october, 1954 and the subordinate judge gave the finding that the suit documents were promissory notes and being insufficiently stamped were admissible to the extent of half of the amount claimed. the defendants felt dissatisfied with the. order and they filed a review application on 3-11-1954 praying that the said documents be held to.....
Judgment:

1. In O. S. 59/1 of 1953-54 on the file of the Subordinate Judge, Secunderabad, Mallikarjunappa laid a claim for recovery of O. S. Rs. 12,657/- on foot of three documents dated 8-8-1950, which according to the plaintiff were hundies. Amongst others, one of the defences raised was that the suit documents were promissory notes payable otherwise than on demand that inasmuch as they were not duly stamped, they were inadmissible in evidence on which no suit could lie. Of the seven issues adjusted in the case, [he first issue was :

'Are the suit documents promissory notes? Arc they inadmissible in evidence?

This issue- was taken up for decision on 4th October, 1954 and the Subordinate Judge gave the finding that the suit documents were promissory notes and being insufficiently stamped were admissible to the extent of half of the amount claimed. The defendants felt dissatisfied with the. order and they filed a review application on 3-11-1954 praying that the said documents be held to be altogether inadmissible in evidence. On a notice being issued to the plaintiff, he demurred to the maintainability of the application on two grounds namely :

1. The; order sought to be reviewed was passed by Mr. Gunde Rao Harvalkar and for the matter of that Mr. Shanker Pershad, the succeeding Subordinate Judge had no jurisdiction to review the order;

2. The order under review having been passed after discussing at length all aspects of the case, it could not be said that there was any mistake or error apparent on the face of the record. In the alternative it was pleaded by the plaintiff that is for any reason the court comes to the conclusion that it has jurisdiction to review the order, it may be held that the stamp duty paid was sufficient to render the suit documents oven as promissory notes admissible for the full consideration shown therein.

2. Mr. Shanker Pershad by his order dated 20-1-1955 overruled the objections raised by the plaintiff and ultimately held that the suit documents were inadmissible in evidence.

3. It is against this order, the plaintiff has filed one (sic) under Clause (w) of Order 43, Rule 1, C. P. C. The learned advocate for the respondents raised the preliminary objection that as the requirement of Rule 4 of Order 47 had been complied with no appeal can lie in view of the provision of R. 7 of the same order. The objection has force and is supported by authority. In Srinivasa Aiyangar v. Official Assignee, Madras, AIR 1927 Mad 641 (a Bench decisional, it has been laid down that the provisions of Order 43, Rule (w), C. P. C., are to be read subject to the provisions of Order 47, and an order granting a review can be appealed against only on one of the grounds set out in O. 47, R. 7.

The same has been held to be the law in the erstwhile State of Hyderabad: vide, Geddam Sita Ram Reddy v. Yerrasnni Venkut Varada Ready.

AIR 1954 Hyd. 166 and Oudtala Venkat Narhari v. Oudtala Narsubai, AIR 1955 Hyd 112. The learned advocate for the Appellant did not challenge the soundness of these decisions. Relying on Vadilal v. Fulchand, ILR 30 Bom 56, Mahomed Rowther v. L. Swaminatha Mudaliar, AIR 1938 Mad 573 and Kishen Rao v. Raja Rameswara Rao, 21 Dec. LR 209, he, however argued that there were three stages of review application.

The first is the ex parte stage when the court may either reject the application at once or may grant a rule asking the other side to show cause as to why the review should not be granted. In the second stage, the rule may either be admitted or rejected. If the rule is discharged, the case ends then and there; if on the other hand, the rule-is made absolute, then the third stage is reached. The case is then heard on the merits and may result in the repetition of the former decree or order or in some variation of it.

In either case, the whole matter having been reopened there is a fresh decree or order. The learned advocate contended that inasmuch as the Subordinate Judge had failed to pass an order in express words granting the application, he would be deemed to have infringed the provisions of Rule 4 of Order 47 and therefore there would lie an appeal as provided by R. 7 thereof. It is no doubt true-that the order making the rule absolute has not been passed, but one thing is clear that notice to the appellant had been served as prescribed by proviso (a) to Rule 4.

Therefore, there could be no complaint of contravention of the provision of Rule 4. Since notice of the review application was ordered to be issued by Mr. Gunde Rao Harvalkar, his successor Mr. Shanker Pershad was competent to dispose it as provided by Order 47, Rule 2, C. P. C. No objection, therefore is open to the appellant on that score. Rule 8 of Order 47 prescribed that when an application for review is granted, a note thereof snail be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

What the Subordinate 'Judge did in this case was no more than that he passed a composite order of granting the review and forthwith re-hearing the case. When the requirements of Rule 2 are satisfied and the mandatory provisions of proviso (a) are complied with, mere omission to pass a formal order making the rule absolute would not attract the provisions of Rule 7 for the simple reason that there was no contravention of Clauses (a) and (b) of Rule 7. We, therefore, hold that die appeal was not competent.

4. The learned advocate for the Appellant then contended that the appeal may be treated as revision. In para 6 of the grounds of anneal the-appellant states that he reserves to himself the objections on the merits of the order. The merits cannot, therefore, be gone into. The only point that could be pressed and was pressed related to the irregularity in passing the order appealed against in a composite form. This cannot be said to be an illegality or material irregularity in the exercise of jurisdiction. We, therefore, find no scope for treating the appeal as a revision.

5. In the result, the appeal is dismissed. Having regard to the facts of this case, we make no order as to casts.


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