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Mahabir Prasad Vs. the Collector of Allahabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1914All44; (1914)ILR36All277
AppellantMahabir Prasad
RespondentThe Collector of Allahabad
Excerpt:
civil procedure code (1908), order xlvii, rule 1 - review of judgment--suit dismissed for want of necessary notice us well as on the merits--ground of review only touching the merits. - - (1) that on the face of it, it did not disclose any good ground for review; and (2) that even if the new and important evidence alleged to have been discovered by the applicant were to affect the decision as to his legitimacy, the decree will still stand good on the other issue in the case, viz......in defence were accepted and the claim was dismissed. about five months after the dismissal of the claim the applicant filed a petition in the court of the subordinate judge under order xlvii, rule i, seeking to review the decree dismissing his claim on the ground of the discovery of new and important evidence on the question of his legitimacy. the learned subordinate judge issued a notice to the other aide to show cause against the application. at the time of hearing the learned judge declined to record evidence on behalf of the applicant, and, presumably after hearing arguments on both sides, rejected the application. he gave two reasons for dismissing the application, viz. (1) that on the face of it, it did not disclose any good ground for review; and (2) that even if the new and.....
Judgment:

Muhammad Rafiq and Piggott, JJ.

1. This is an application in revision asking us to set aside the order of the lower court rejecting an application for review filed by the applicant before it. It appears that the applicant instituted a regular suit in the court of the Additional Subordinate Judge of Allahabad, for the recovery of certain property on the allegation that ho was the son of one Thakur Beni Bahadur Singh. The property in suit was at the time in the possession of the Court of Wards, on behalf of a minor. The claim was resisted on the ground, among others, that notice under Section 48 of Local Act No. III of 1899, had not been given as prescribed in the Act, and that the plaintiff applicant was not the legitimate son of Beni Bahadur Singh. Both the pleas in defence were accepted and the claim was dismissed. About five months after the dismissal of the claim the applicant filed a petition in the court of the Subordinate Judge under order XLVII, Rule I, seeking to review the decree dismissing his claim on the ground of the discovery of new and important evidence on the question of his legitimacy. The learned Subordinate Judge issued a notice to the other aide to show cause against the application. At the time of hearing the learned Judge declined to record evidence on behalf of the applicant, and, presumably after hearing arguments on both sides, rejected the application. He gave two reasons for dismissing the application, viz. (1) that on the face of it, it did not disclose any good ground for review; and (2) that even if the new and important evidence alleged to have been discovered by the applicant were to affect the decision as to his legitimacy, the decree will still stand good on the other issue in the case, viz., the want of proper notice. The applicant has come up to this Court in revision and contends that he should have been allowed an opportunity of producing evidence to make out a case for the granting of his application for review. It is said that if he had succeeded in persuading the lower court to accept the new evidence the decision on the question of legitimacy would probably have been modified and given in his favour. In that case he would have had an opportunity of coming up in appeal and re-opening the question of the want of notice. We think that the application for review was rightly rejected. The decision on the question of legitimacy on the reception of new evidence would not have modified or set aside the original decree. In our opinion the provision relating to review contemplates grounds which would alter or cancel the original decree. The application, therefore, fails and is rejected with costs.


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