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Sardar Balbir Singh Vs. Atma Ram Srivastava - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberReview Application No. 1 (M) of 1977
Judge
Reported inAIR1977All445
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2 and 151 - Order 47, Rules 1 and 2; Allahabad High Court Rules - Rule 12
AppellantSardar Balbir Singh
RespondentAtma Ram Srivastava
DispositionApplication dismissed
Excerpt:
(i) civil - review of opinion - order 47 rule 1 of code of civil procedure,1908 - opinion pronounced on question of law - application for review is not maintainable under order 47 rule 1. (ii) review of judgment - chapter 5 rule 12 of (allahabad high court ) rules of court - scrutiny of application - held, not barred under order 47 rule 1 of code of civil procedure,1908. - .....endorse thereon the date when it is presented and lay the same as early as possible before the judge or judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court-fees. if such judge or judges or any one or more of such judges be no longer attached to the court, the application shall be laid before the chief justice who shall, having regard to the provisions of rule 5 of order xlvii of the code, nominate a bench for the hearing of such application:'in our opinion, rule 12 contemplates only applications for review of judgments and not applications which in law cannot be deemed to be applications for the review of a judgment. such an application need not be placed for preliminary consideration before the same bench or a bench.....
Judgment:

Hari Swarup, J.

1. This application purports to be an application for 'reviewing, correcting and amending' the opinion given by the Full Bench on a question of law referred to it by a learned single Judge. It has been made 'under Section 151/152 read with Order 47 Rule 1 C. P. C.'

2. In a revision filed Under Section 115 CPC the learned single Judge Hearing the revision referred for the opinion of a larger bench the following question of law:

'Is the plaintiffs suit (No. 16 of 73) maintainable having regard to the provision of Order 2 Rule 2 of the Civil Procedure Code?'

A Bench of five Judges was constituted and it answered the question in the affirmative. It is in respect of the opinion of the Full Bench that the present application has been moved.

3. The application was directed to he listed before Division Bench by the Hon'ble the Chief Justice. A preliminary objection has been raised to the consideration of this application by the Division Bench on the ground that the opinion sought to be 'reviewed, corrected and amended' was given by a Full Bench of five Judges. Reliance has been placed in support of this contention on Rule 12 of Ch. V of the Rules of Court It provides:

'An application for the review of a judgment shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court-fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the Court, the application shall be laid before the Chief Justice who shall, having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such application:'

In our opinion, Rule 12 contemplates only applications for review of judgments and not applications which in law cannot be deemed to be applications for the review of a judgment. Such an application need not be placed for preliminary consideration before the same bench or a bench consisting of an equal number of Judges when one of them has retired. The object of the Rule is that a judgment should not be reviewed by a Bench consisting of a less number of Judges than those who gave the judgment, but it does not intend to bar the primary scrutiny of the application by a Division Bench for determining the character of the application and its maintainability. We accordingly overrule the objection and proceed to determine if the present application is in fact an application for review of a judgment and is maintainable in law.

4. Order XLVII Rule 1 of the Code of Civil Procedure permits a person considering himself aggrieved by a decree or order or a decision on a reference from a Court of Small Causes to apply for review of the decree or decision but it does not contemplate the review of opinions on questions of law which do not amount to decrees or orders. The answer given by the Full Bench was to a question of law referred to it under the proviso to Rule 2 of Ch. V of the Rules of Court The relevant proviso is in clause (b) which runs as under:

'a Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting alone or any question of law arising therein for decision to a larger Bench;'

The decision of the Full Bench on the question of law did not decide the case but only a question of law arising in the case which still remains pending before the learned single Judge. The words 'decree/ judgment' and 'order' have all been defined in the Code of Civil Procedure. Their definitions run as under in Section 2:

'(2) 'decree' means the formal expression of an 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. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include:

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

(9) 'Judgment' means the statement given by the Judge of the grounds of a decree or order.

(14) 'Order' means the formal expression of any decision of a Civil Court which is not a decree.'

The words 'decree' and 'order' used in Rule 1 of XLVII C. P. C. must obtain the same meaning as are given in Section 2 of the Code. The decision on the question of law given by the Full Bench in these circumstances cannot be deemed to be a 'decree' or 'order' within the meaning of Order XLVII Rule 1 of the Code. The application cannot, therefore, be deemed to be an application for review under Order XLVII, Rule1 C. P. C

5. Section 151 C. P. C. can also not be brought in aid for treating the present application as an application for review. Only a question of law referred by a single Judge has been answered by a Full Bench. Rehearing of the same question of law cannot be deemed to be contemplated by Section 151 C. P. C. as its re-hearing cannot be deemed to be necessary for the ends of justice or for preventing abuse of the process of the court when the rights of the parries have yet to be determined in the revision. Section 151 C. P. C. is not meant to give a second inning to a party if a question of law is answered against it.

6. Section 152 C. P. C. is obviously not attracted. In the opinion given on a question of law there cannot be any clerical or arithmetical mistake or error arising from any accidental slip or omission.

7. This application is misconceived and is not maintainable under law. We accordingly dismiss the application.


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