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Gauri Shankar Vs. Chaudhry Jagannath - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.841
AppellantGauri Shankar
RespondentChaudhry Jagannath
Excerpt:
civil procedure code (act v of 1908). order xlvii, rule 1 - appeal filed after application for renew--rule, whether applicable. - - 1. nobody appearing on the other side, it is clearly shown that there has been a mistake, namely, that in the judgment of the 7th of april 1919, credit has not been given for the sum of re, 1,400, which was admittedly left with the venices to discharge a certain debt whish had not been discharged......discharged. an application for review was made promptly on the 4th of june 1919 on behalf of the decree-holder. the un successful party filed an appeal in october 1919, it is suggested that this was not done bona fide bat with a view to defeating the decree-holder's application for review. whether this is so or not, we think the provisions of order xlvii, rule 1, do not apply when the appeal is filed by the other side subsequent to the application for review.' there is an authority of this court for that in the case of partap singh v. jaswant singh 52 ind. cas. 642 : 17 a.l.j. 1021 : 42 a. 79. in any event it is not a case in whish it would either be right or reasonable to be technical. the other side is not re presented. there are no merits, as matters stand. there has been a.....
Judgment:

1. Nobody appearing on the other side, it is clearly shown that there has been a mistake, namely, that in the judgment of the 7th of April 1919, credit has not been given for the sum of Re, 1,400, which was admittedly left with the venices to discharge a certain debt whish had not been discharged. An application for review was made promptly on the 4th of June 1919 on behalf of the decree-holder. The un successful party filed an appeal in October 1919, It is suggested that this was not done bona fide bat with a view to defeating the decree-holder's application for review. Whether this is so or not, we think the provisions of Order XLVII, Rule 1, do not apply when the appeal is filed by the other side subsequent to the application for review.' There is an authority of this Court for that in the case of Partap Singh v. jaswant Singh 52 Ind. Cas. 642 : 17 A.L.J. 1021 : 42 A. 79. In any event it is not a case in whish it would either be right or reasonable to be technical. The other side is not re presented. There are no merits, as matters stand. There has been a miscarriage of justice and the applicant before a is entitled to have his decree amended, and instead of sending it bask we direst that the decree-holder's decree, which has been confirmed in this Court on appeal, must be amended as prayed, namely, the suit be decreed on payment of Rs. 1,600 instead of Rs. 3,000. The respondent must pay the costs of this application and of the proceedings in the Court below.


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