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Ram Dayal and ors. Vs. Kailashi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberF.A.F.O. No. 240 of 1948
Judge
Reported inAIR1950All160
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 2
AppellantRam Dayal and ors.
RespondentKailashi
Appellant AdvocateKailash Prasad Gupta, Adv.
Respondent AdvocateJanardan Sarup Gupta, Adv.
DispositionAppeal allowed
Excerpt:
- - , would clearly include the judgment, the decree and the other papers on the record, while the word, decree' in rule 2, cannot include the judgment or the other papers on the record. 5. we are clearly of the opinion that the lower court had no jurisdiction to entertain this application......the application and so grant it, order 47, rule 1, civil p. c. gives the grounds on which a review application can be filed. they are as follows:'any person considering himself aggrieved,--(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,(b) by a decree or order from which no appeal is allowed, or(c) by a decision on a reference from a court of small causes,and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree.....
Judgment:

Malik, C.J.

1. A suit was decided by a learned Civil Judge on 23rd March 1948. The learned Judge was transferred and his successor assumed office. An application was filed before him under Order 47, Rule 1, Civil P. C. for review. The only ground urged as a ground for review was the omission on the part of his predecessor to consider a patta of the year 1901. The learned Judge was of the opinion that the patta of 1901 was not taken into consideration by his predecessor and granted the application. The learned Judge has not yet decided whether the patta, even if taken into consideration, would affect the decision of the case. It is against that order that this appeal has been filed under Order 43, Rule 1 (w), Civil P. C.

2. It has been urged by the learned counsel for the appellant that the learned Civil Judge, who granted this review, had no jurisdiction to entertain the application and so grant it, Order 47, Rule 1, Civil P. C. gives the grounds on which a review application can be filed. They are as follows:

'Any person considering himself aggrieved,--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.'

Rule 2 of that Order is in the following terms :

'An application for review of a decree or order of a Court not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who passed the decree or made the order sought to be reviewed ; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under Rule 4, Sub-rule (2) proviso (a) be disposed of by his successor.'

This rule provides that if an application for review is filed on the ground of discovery of some

'new and important matter or evidence, as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree,'

then the application may be filed before the successor of the Judge who had passed the previous order; but if the application is not filed on either of these two grounds, then the application can be dealt with by the successor only if the application was filed before the very judge who passed the decree or order and notice was issued by him.

3. The only ground for review which was pressed before the lower Court was that the judge whose decree was sought to be reviewed had not taken into consideration a document which was already on the record. The allegation that a Judge did not take into consideration a piece of evidence which was on the record cannot be said to be a 'clerical or arithmetical mistake or error apparent on the face of the decree.' In Rule 1 (1) of Order 47, Civil P. C., the words used are 'some mistake or error apparent on the face of the record,' while in Rule 2 the words used are 'clerical or arithmetical mistake or error apparent on the face of the decree.' Instead of the words, 'on the face of the record' in Sub-rule (1) of rule 1 of Order 47, the words in Rule 2 of Order 47, are 'on the face of the decree.' We cannot assume that the legislature used the words in two rules in the same sense. The word, 'decree' is defined in the Code and it means 'the formal expression of adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final,' while the word, 'judgment,' has been defined as 'the statement given by the Judge of the grounds of a decree or order.' The word, 'record' in Rule 1 of Order 47, Civil P. C., would clearly include the judgment, the decree and the other papers on the record, while the word, 'decree' in Rule 2, cannot include the judgment or the other papers on the record.

4. Moreover, the successor Judge has jurisdiction to entertain an application for review only if there is a 'clerical or arithmetical mistake or error apparent on the face of the decree.' The suggestion that the Judge had not consider-ed a material piece of evidence on the record is neither a clerical or arithmetical mistake or an error apparent on the face of the decree.

5. We are clearly of the opinion that the lower Court had no jurisdiction to entertain this application. The appeal is, therefore, allowed, the order of the lower Court is set aside and the appellant is entitled to get his costs in both the Courts.

6. Stay order is discharged.


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