1. This application purporting to be for modification of an order passed by A. P Srivastava, J. on 2-8-1962 was placed before our brother D.S. Mathur, who by his order dated 28-8-1963 has referred it to a Bench for decision of the question whether it can be disposed of by a single Judge or must be disposed of by a Bench. The question arose because of the retirement of A.P. Srivastava. J. who had passed the order sought to be modified. Ch. V Rule 12 of Rules of Court is to the effect that
'an application for the review of a judgmentshall be presented to the Registrar, who shall...lay the same... before the Judge or Judges bywhom such judgment was delivered... If suchJudge or Judges... be no longer attached tothe Court, the application shall be laid before theChief Justice who shall, having regard to the provisions of Rule 5 nominate a Bench for thehearing of such application'
Sri G.D Srivastava contended that his application is for review of a judgment governed by Ch. V Rule 12 and that it must be laid for disposal before a Bench to be nominated by the Chief Justice because Mr. Justice A.P. Srivastava is no longer attached to this Court. We disagree with this contention because we have no doubt that the order passed by Mr. Justice A.P. Srivastava is not a Judgment and that this application is not for review.
2. By the order, Mr. Justice Srivastava simply stayed execution of a decree during the pendency of a second appeal; he did not decide any question of right of any party. Whether execution of the decree should be stayed or not was a matter at his discretion and was not a matter of right of the appellant. When he stayed it he did not decide any question of the appellant's right or the right of the respondents to execute the decree. In any case he did not adjudicate upon the rights of the parties to the second appeal. An order cannot be a judgment unless it decides a question of rights of parties in the suit or action.
3. The application itself does not purport to be an application under Order 47, C. P. C. for review and is not stamped as an application under Order 47. In the heading 'Section 151' C. P. C. is mentioned and not 'Order 47' and the prayer in the application is:
'It is therefore respectfully prayed that the interim order...... may be modified and thisHon'ble Court may pass such other order as it may deem fit in the ends of Justice'
The grounds also do not make out a case for review; it is not alleged that there was any apparent error on the face of the record or that the applicant could not with due diligence place certain matter before Mr. Justice A.P. Srivastava The reason for the modification is that the applicant'scounsel was absent on the date on which Mr. A. P. Srivastava passed the order and that consequently certain matters could not be placed before him This ground does not make out a case for review under Order 47, C. P. C. On an application for review under Order 47 Court-fee is pay able depending upon the valuation of the plaint but here the application has been stamped as an ordinary application and not an application for review of a judgment. It is, therefore, clear that the application is not for review at all.
4. Since the application is not for review of a judgment it is not governed by Ch. V Rule 12 and is not required to be placed before a Bench. It is an ordinary application which should ordinarily have been heard by Mr. Justice A.P. Srivastava under Ch. V Rule 13. An application for modification of an order passed on a previous application by the same party may be said to be an application to the same effect or with the same object as the earlier application; it is not invariably to be laid before the Judge who had passed orders on the earlier application. The present application was, therefore, not bound to be placed before Mr. Justice A.P. Srivastava even if he had not retired; even if he had not retired it could have been laid before any other single fudge. The position is not altered by his retirement and merely because he has retired it is not required to be placed before a Bench of two Judges now.
5. We therefore, hold that this applicationcan be disposed of by a Single Judge List ifbefore a single Judge.