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Raghubir Singh and ors. Vs. Nathu Mal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in92Ind.Cas.1013
AppellantRaghubir Singh and ors.
RespondentNathu Mal
Cases ReferredChhajju Ram v. Neki
Excerpt:
civil procedure code (act v of 1008), section 109, order xlvii, rule 1 - substantial question of law-certificate for appeal to privy council--review--'any other sufficient reason', meaning of-fraud and undue influence. - .....for review has been granted. an appeal is only entertainable when the grounds specified in order xlvii, rule 7(1) had been established.4. the learned judges of this court were of opinion that the appellant had not shown that he was entitled to appeal against the order of the court of first instance, inasmuch as he was not able to show that the grounds specified in order xlvii, rule 7 were present in the case. the learned judges, however, proceeded to treat the petition of appeal as a petition for revision, and came to the conclusion that the subordinate judge had entertained the application for review without jurisdiction. they set aside his order by their judgment dated the 7th of july 1925. it is against this order of the court passed in revisional jurisdiction that the present.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council against an order of a Bench of this Court passed in its revisional jurisdiction. It appears that in the Court of first instance a suit was brought against one Manohar Singh. The 17th of November 1923 was fixed for the settlement of issues. Before that date Manohar Singh came into Court and filed a written statement in which he stated that he was willing to confess judgment and prayed that he might be relieved from the costs. The plaintiff consented to this arrangement and on the 13 th of November 1923 a judgment was given as on a compromise.

2. On January 26, 1924, the defendant Manohar Singh filed an application for review before the Subordinate Judge. The Subordinate Judge went into the matter and after having recorded certain evidence he gave effect to the application and. re-called his first decree. Against this order of the Subordinate Judge, an appeal was brought to this Court which was filed as a first appeal from order.

3. It is true that under the provisions of Order XLIII, Rule (1) Clause (w) an appeal lies against an order under Rule 4, Order XLVII granting an application for review. A reference to Rule 7 of Order XLVII, however, shows that an appeal does not lie in all cases in which the application for review has been granted. An appeal is only entertainable when the grounds specified in Order XLVII, Rule 7(1) had been established.

4. The learned Judges of this Court were of opinion that the appellant had not shown that he was entitled to appeal against the order of the Court of first instance, inasmuch as he was not able to show that the grounds specified in Order XLVII, Rule 7 were present in the case. The learned Judges, however, proceeded to treat the petition of appeal as a petition for revision, and came to the conclusion that the Subordinate Judge had entertained the application for review without jurisdiction. They set aside his order by their judgment dated the 7th of July 1925. It is against this order of the Court passed in revisional jurisdiction that the present application for leave to appeal has been filed.

5. It is clear that the applicant for leave to appeal to His Majesty in Council has not got an absolute right of appeal under the provisions of the Code. The case is one which falls within Section 109(c) of the C.P.C., and it, therefore, lies upon the applicant to establish that the case is a fit one for appeal to His Majesty in Council. It may be mentioned moreover that the valuation of the suit and the valuation taken in this Court was Rs. 8,000 only.

6. We are asked to certify that this is a case which is fit for appeal, on the ground that it raises a substantial question of law of general importance. In our opinion it does not do anything of the sort. The Judges of this Court had before them the question as to whether the Subordinate Judge had authority and jurisdiction to entertain the application for review on the grounds of fraud and undue influence. On their interpretation of the law as laid down in Order XLVII, Rule 1 they were of opinion that these were no grounds on which it was competent to the Subordinate Judge to entertain the application for review. They have followed a decision of this Court and also a decision of their Lordships of the Privy Council in Chhajju Ram v. Neki 72 Ind. Cas. (sic) A. 144 : 30 M.L.T. 295 : 26 C.W.N. 697 : 41 P.L. (sic) (P.C.) 1922 : 3 P.L.T. 435 : A.I.R. 1922 P.C. 112 : 16 L.W. 37 : 17 P.W.R. 1922 : 3 L. 127 : 43 M.L.J. 332 : 24 Bom. L.R. 1238 : 4 U.P.L.R. (P.C.) 99 : 36 C.L.J. 459 (P.C.). In that case it was held that Order XLVII, Rule 1 of the C.P.C. must be read as in itself definitive of the limits within which review of a decree or order is now permitted and the words 'any other sufficient reason' mean grounds at least analogous to those specified (sic) rule The Judges of this Court (sic) that fraud or undue influence did not constitute grounds analogous to those specified in Order XLVII, Rule 1. Being of opinion, therefore, that the Subordinate Judge acted without jurisdiction they set aside his order.

7. It seems to us no question of law is involved at all for the law has already been settled in the sense adopted by the learned Judges of this Court. We have just mentioned the decision of their Lordships of the Privy Council which seems to us to settle the law on the point. No case has, therefore, been made out for appeal to His Majesty in Council and we, therefore, dismiss this application with costs including fees on the higher scale.


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