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Musammat RukmIn Kuer Vs. Musammat Ram Piari - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in122Ind.Cas.184
AppellantMusammat RukmIn Kuer
RespondentMusammat Ram Piari
Cases ReferredAli Akbar v. Khurshed Ali
Excerpt:
civil procedure code, (act v of 1908), order xliii, rule 1(w), order xlvii, rules 1, 7 - order granting review--appeal--grounds for appeal--'any other sufficient reason', meaning of. - - 2, her goo, was not at all given any information of like preparation of the decree absolute, nor did the amin send any notice regarding measurement. 465]. the case referred to above is clearly in point.1. this is an application for civil revision under section 115 of the code of civil procedure and has been made by the plaintiff in the action under the following circumstances: a suit for partition having been instituted, a preliminary decree was passed upon a compromise. this was followed by a final decree. a civil court amin was deputed to make a partition of the house property. he carried out the order, prepared lots and assigned one portion of the house to the plaintiff and another portion; to the defendant. an application was presented by musammat ram, piari defendant in the court of the munsif, west allahabad, on the 8th of april, 1927 under order xlvii, rule 1 of the code of civil procedure in which she asked for a review of judgment, inter alia, on the ground that after the.....
Judgment:

1. This is an application for civil revision under Section 115 of the Code of Civil Procedure and has been made by the plaintiff in the action under the following circumstances: A suit for partition having been instituted, a preliminary decree was passed upon a compromise. This was followed by a final decree. A Civil Court Amin was deputed to make a partition of the house property. He carried out the order, prepared lots and assigned one portion of the house to the plaintiff and another portion; to the defendant. An application was presented by Musammat Ram, Piari defendant in the Court of the Munsif, West Allahabad, On the 8th of April, 1927 under Order XLVII, Rule 1 of the Code of Civil Procedure in which she asked for a review of judgment, inter alia, on the ground that after the passing of the preliminary decree 'the defendant No. 1 or her Pleader or defendant No. 2, her goo, was not at all given any information of like preparation of the decree absolute, nor did the Amin send any notice regarding measurement. Neither any information of the receipt of the Amin'B report was given, nor was any information of the drawing of lots given. Narain Das, the husband of the plaintiff, got all the proceedings taken in collusion with the Amin.'

2. The application was hotly contested and the record teems with applications and counter applications which illustrate the rancour and hatred entertained by one party for the other and it. is painful to have to wade through the long and unsavory catalogue of mutual recriminations.

3. The learned Munsif made a local inspection. He was convinced of the truth of the petition. He was of opinion that the lots as formed by the Amin were unequal. He held, therefore, that there were sufficient grounds for review and granted the review accordingly.

4. An appeal was preferred by the plaintiff under Order XLIII, Rule 1 Clause (w) of the Code of Civil Procedure, which was heard by Mr. S.M. Said Uddin, the Additional Subordinate Judge of Allahabad. A pre iminary objection was raised before him on the ground that no appeal lay. He sustained the preliminary objection and dismissed the appeal.

5. It is from the aforesaid order that the application for revision has been presented to this Court.

6. Order XLIII, Clause Rule 1- (w) gives a right, of appeal from an order under Rule 4 of Order XLVII of the Civil Procedure Code granting an application for review. This order however, should be read subject to Order XLVII, Rule 7 of the Code of Civil Procedure which provides that ' an order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected toon the ground that the application was (a) in contravention of the provisions of Rule 2, (b) in contravention of the provisions of Rule 4, or (c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. Such objection may be taken at once by an appeal for the order granting the application or in any appeal from final decree or order passed or made in the suit.' It, is clear that an appeal lies from an order only in the three cases mentioned above. To hold otherwise would be to make the provisions of Sub-rule (1) so far as they relate to appeal entirely superfluous. This is the view which has been taken in Khurshed Alam Khan v. Rahmat Ullah Khan 43 Ind. Cas. 490 : 40 A. 68 : 15 A.L.J. 899, Madhori Saran v. Parbati : AIR1925All552 and in Hari Charan Saha v. Baran Khan 25 Ind. Cas. 903 : 41 C 746. The reason for the rule is not far ' to seek. There is nothing in law to bar the inherent power of the Court to amend its own error upon the ground that the judgment was wrong or was unfair to one of the parties. The remedy of the person aggrieved by the review of judgment lies by an appeal from the decree passed on review and not by an appeal from the order granting the review under these circumstances. In the present case it is clear that the order granting the review has not been challenged upon any of the three grounds mentioned in Order XLVII, Rule 7, Clauses (a), (6) and (c). It has been argued that the Court of first instance having granted the review upon what it considered as sufficient grounds, the alleged sufficiency of the grounds could be challenged in appeal under Order XLIII, Rule 1, Clause (w). It may be pointed out that their Lordships of the Judicial Committee in the case of Chhajju Ram v. Neki 72 Ind. Cas. 566 : 49 I.A. 144 : 30 M.L.T, 295 26 C.W.N. 697 : 41 P.L.R. 1922 : 3 P.L.T. 435-A.I.R. 1922 P.C, 112 : 16 L.W, 37 : 17 P.W.R. 1922 : 3 Lah. 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.) made a review of ail the authorities and laid down the rule that 'any other sufficient reason' in Order XLVIJ, Rule 1 of the Civil Procedure Code means grounds analogous to those specified in the portion immediately preceding these words. The ground upon which the review was sought was not a ground ejusdem generis with the grounds set out in the earlier part of Order XLVII, Rule 1 of the Civil Procedure Code. The right of appeal being restricted to the three grounds set out in Order XLVII, Rule 7 of the Civil Procedure Code and the review having been granted upon a ground outside the purview of the said rule, no appeal lies. The sufficiency or otherwise of the reason for granting a review outside the limits of Order XLVII, Rule 7 of the Civil Procedure Code does not invest the person aggrieved with the right under the Civil Procedure Code to appeal. [Ali Akbar v. Khurshed Ali 27 A. 695 : A.W.N. (1905) 154 : 2 A.L.J. 465]. The case referred to above is clearly in point. The judgment of the Court below is right. We dismiss this' application with costs.


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