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Akbar Khan and ors. Vs. Muhammad Ali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All610
AppellantAkbar Khan and ors.
RespondentMuhammad Ali Khan and ors.
Excerpt:
civil procedure code (1882), sections 626 and 629 - review of judgment--rejection of application for review upon the ground of want of jurisdiction--revision. - - as that view is clearly wrong, i am of opinion that an application for revision can be entertained under section 622 of act no......in holding that by reason of the pendency of an appeal in this court from a decree in another suit the application for review does not lie has refused to exercise a jurisdiction vested in him by law. this is not disputed by the learned vakil for the opposite parties. but he judges, that as the court has rejected the application for review, its order is final under section 629 of act no. xiv of 1882, and no application for revision lies. in support of this contention he refers to the case of mam lal v. matan lal (1904) i.l.r. 26 all. 527. that case seems to me to be distinguishable. that was a case in which an application for review had been rejected under section 626. an order rejecting an application under that section is final under section 629. whether by the word 'final' the.....
Judgment:

Banerji, J.

1. This is an application for revision of an order of the additional Judge of Meerut, refusing to entertain an application for review of judgment. The application for review was made on the ground that by an oversight the court which decided the case had omitted to insert in the final order contained in the judgment a direction for the decretal of the claim in respect of house property in Batrara and some other property. The decree in the case was drawn up in accordance with the judgment and omitted these two items of property. An application for review was accordingly made to the court below for the correction of the error which, it was alleged, had crept into the judgment and the decree. The learned Judge of the court below refused to entertain the application on the ground 'that it cannot lie, while applicant's appeal on exactly opposite allegations is lying in the High Court.' It appears that in a subsequent suit the question arose, whether the plaintiff was entitled to partition, of the house mentioned above. The appellate court held that having regard to the terms of the decree in the suit to which I have referred, the subsequent suit was barred by the rule of res judicata. Against this decree an appeal is now pending in this Court. It is to this appeal and the grounds taken in it that the learned Judge refers. The mere fact that an opposite contention was urged in an appeal in a subsequent suit, does not, in law, preclude the applicants from making an application for a review of judgment. The learned Judge, therefore, in holding that by reason of the pendency of an appeal in this Court from a decree in another suit the application for review does not lie has refused to exercise a jurisdiction vested in him by law. This is not disputed by the learned vakil for the opposite parties. But he judges, that as the Court has rejected the application for review, its order is final under Section 629 of Act No. XIV of 1882, and no application for revision lies. In support of this contention he refers to the case of Mam Lal v. Matan Lal (1904) I.L.R. 26 All. 527. That case seems to me to be distinguishable. That was a case in which an application for review had been rejected under Section 626. An order rejecting an application under that section is final under Section 629. Whether by the word 'final' the Legislature intended to mean 'non-appealable', it is not necessary to decide in this case. I am of opinion that Section 629 should be read with Section 626. Under the latter Section, if it appears to the Court that there is no sufficient ground for review, it shall reject the application. When an application is so rejected the order of the Court is, under Section 629, final. The same view appears to have been held by my brother Richards, in Willis v. Jawad Husain (1907) I.L.R. 29 All. 468. In this case the Court did not consider whether or not there were sufficient grounds for a review, but rejected the application, not in accordance with the provisions of Section 626, but simply on the erroneous view that an application did not lie, that is to say, that the Court had no jurisdiction to entertain it. As that view is clearly wrong, I am of opinion that an application for revision can be entertained under Section 622 of Act No. XIV of 1882, to which Section 115 of the Code of Civil Procedure, 1908, corresponds. As, in my opinion, the Court below improperly refused to exercise jurisdiction, I allow the application, and setting aside the order of that Court, send back the case to it with directions to readmit it under its original number in the register and dispose of it on the merits. Costs will abide the event.


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