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Balkrishan and anr. Vs. Mt. Bundia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All274
AppellantBalkrishan and anr.
RespondentMt. Bundia and ors.
Excerpt:
- - that is to say, to excusable failure to bring to the notice of the court new and important matters, or error on the face of the record......his attempt at what is practically a rehearing of the second appeal by stating that there was an error apparent on the face of the record within the meaning of order 47, rule 1. this error, according to him, is an error of law, and his proposition was that when the plaintiffs released a part of the property mortgaged from their claim, the plaintiffs were not entitled to put the entire burden of the mortgage debt on the other property. it was argued for the applicant in review that an error of law may be the subject of a review, and that this proposition was laid down in murari rao v. balavanth dikshit air 1921 mad 98. it is true that that ruling does state on p. 957 (of 43 mad.):in the present case the district judge was guilty of an error of law, but an error so patent that we think.....
Judgment:

Bennet, J.

1. This is an application for a review of judgment under Order 47, Rule 1 filed by a respondent to a second appeal which was decided by a Bench of two Judges of this Court, neither of whom is now a member of the Bench. The second appeal was decided on 16th June 1931, and the term of office of one of these Judges was terminating on 4th August 1931. On 4th August 1931, this application for review was presented; that is, it was presented after an interval of seven weeks and on a date which made it impossible that it should be heard by the two Judges who composed the Bench which disposed of the second appeal. The second appeal was brought by the plaintiffs, and the first ground was as follows:- 'Because the plaintiffs were entitled to realize their mortgage money in full from any mortgaged property and the decree declaring proportionate liability of properties possessed by defendants Nos. 2 and 5 is contrary to law.' This was the main question argued in the second appeal, and this Court allowed the contention of the plaintiffs-appellants. The grounds of review before us are extremely vague, and it is stated in the first ground:

Because all the parties and the properties having been included in the suit, this Court has erred in not adjudicating the respective rights and liabilities of all the parties before it especially when the plaintiff claimed to put the entire burden on a portion of the property.

2. From the explanation of the learned Counsel for the applicant, who is defendant 2, one Bala Prasad, a respondent in the sec ond appeal, we understand that the question which it is now desired to raise is exactly the same question which was raised in ground No. 1 of the second appeal. The learned Counsel justified his attempt at what is practically a rehearing of the second appeal by stating that there was an error apparent on the face of the record within the meaning of Order 47, Rule 1. This error, according to him, is an error of law, and his proposition was that when the plaintiffs released a part of the property mortgaged from their claim, the plaintiffs were not entitled to put the entire burden of the mortgage debt on the other property. It was argued for the applicant in review that an error of law may be the subject of a review, and that this proposition was laid down in Murari Rao v. Balavanth Dikshit AIR 1921 Mad 98. It is true that that ruling does state on p. 957 (of 43 Mad.):

In the present case the District Judge was guilty of an error of law, but an error so patent that we think it can be said to be apparent on the face of the record,

and on p. 958 it is stated:

We are not prepared to accept appellants' contention that the word 'error' must necessarily be limited to errors of fact, but consider that there are cases in which an error of law can also come within the meaning of the rule.

3. We consider that even if we were to follow this ruling we could not say that in the present case there was any error of law so patent that it could be said to be apparent on the face of the record. The point of law which the learned Counsel for applicant desires to establish is a point which he could only establish after argument and reference to authorities. It is certainly not a point which is apparent on the face of the record; nor is it a point so simple as to carry conviction when it is stated. We consider however that we are bound by the ruling of their Lordships of the Privy Council reported in Chhajju Ram v. Neki AIR 1922 PC 112. In this case it is stated on p. 131:

The plaintiffs then applied under Order 47, Rule 1, Civil P.C., 1908, for a review of the judgment of the Division Bench, on the ground that the Division 'Bench ought not to have admitted the additional ground of appeal, and that the learned Judges wore misled into holding that the facts found by them disentitled the plaintiffs to a decree.

4. It is clear that the grounds in that case were alleged errors of law. It was held on p. 135 by their Lordships:

They think that Rule 1, Order 47 must be read as in itself definitive of the limits within which review is today permitted, and the reference to practice under former and different statutes is misleading. So construing it they interpret the words 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred the course taken by the second and third Division Benches.

5. Their Lordships therefore held that review would lie on the alleged error of law. As regards the words 'error apparent on the face of the record,' at p. 133 their Lordships stated:

The three oases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or 'any other sufficient reason.' The first two alternatives do not apply in the present case, and the expression 'sufficient,' if this were all, would naturally be read as meaning sufficiency of a kind analogous to the two already specified; that is to say, to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record.

6. This passage indicates that their Lordships held that the application for review in that case would not come under the heading of 'mistake or error apparent on the face of the record.' and that it would come, if it would come at all, under the words 'any other sufficient reason.' They then proceeded to say that it did not come under those words. It therefore must be taken that their Lordships have negatived the proposition of the present applicant that an error in law will come under the words 'error apparent on the face of, the record.' Accordingly we refuse this application for review with costs.


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