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Union of India (Uoi) Vs. D. Paraju - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 50 of 1961 and Civil Revn. No. 149 of 1961
Judge
Reported inAIR1963Ori126; 29(1963)CLT373
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 47, Rules 1, 4 and 7
AppellantUnion of India (Uoi)
RespondentD. Paraju
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateK.S.R. Murty, Adv.
DispositionAppeal dismissed
Cases ReferredState of Bihar v. Abdul Majid
Excerpt:
.....(2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - but this contention also must fail because in the main judgment in money suit no. it is well settled that an error apparent on the face of the record should appear either in the order itself, or any other document which is incorporated in that order......filed a review petition before the same court purporting to be one under order 47 rule 1 of the civil procedure code and section 151 of that code. the main ground taken there was that a ruling reported in state of bihar v. abdul majid, air 1954 sc 245 had been referred to, but not cited, by the learned advocate for the plaintiff during the hearing of the main suit. the court thought that there was a bona fide mistake apparent on the face of the record, and hence, following that decision, he modified his previous view and directed that the judgment be modified. the railway administration (union of india) were not quite sure whether an appeal or revision would lie against this order of review and hence by way of abundant precaution filed both m. a. 50/61 and c. r. 149/61.2. mr. murty.....
Judgment:

Narasimham, C.J.

1. The appeal and revision are against one order dated 9-2-61 of the Second Additional Subordinate Judge, Cuttack reversing the Judgment passed by him in M. S. No. 181 of 1958 and modifying the same. The plaintiff in that suit was an employee of the S.E. Railway who was dismissed from service and subsequently reinstated. He claimed arrears of salary for the period during which he was under orders of dismissal. The Court by its order dated 23-8-60 passed a preliminary decree directing the appointment of a pleader Commissioner to take account of various sums due to the plaintiff. Subsequently the plaintiff filed a review petition before the same court purporting to be one under Order 47 Rule 1 of the Civil Procedure Code and Section 151 of that Code. The main ground taken there was that a ruling reported in State of Bihar v. Abdul Majid, AIR 1954 SC 245 had been referred to, but not cited, by the learned Advocate for the plaintiff during the hearing of the main suit. The Court thought that there was a bona fide mistake apparent on the face of the record, and hence, following that decision, he modified his previous view and directed that the Judgment be modified. The Railway Administration (Union of India) were not quite sure whether an appeal or revision would lie against this order of review and hence by way of abundant precaution filed both M. A. 50/61 and C. R. 149/61.

2. Mr. Murty raised a preliminary objection to the maintainability of the appeal and revision. In my opinion this preliminary objection must prevail. An appeal against an order of review is permissible only if it is an order which contravenes Rule 4 or Rule 2 (sic) of Order 47 of the Civil Procedure Code, and it is undisputed that the order of review passed by the lower court does not contravene either of these two rules. Hence M. A. 50/61 is not maintainable.

3. Mr. Pal however urged that a revision would lie inasmuch as the review was entertained mainly on the ground of error apparent on the face of the record. But this contention also must fail because in the main judgment in Money Suit No. 181 of 1958, AIR 1954 SC 245 was not referred to at all. It is well settled that an error apparent on the face of the record should appear either in the order itself, or any other document which is incorporated in that order. Merely because the Advocate referred to a decision of the Supreme Court during the course of the argument, but did not cite it before the lower court, such an omission would not amount to an error apparent on the face of the record. The review order must therefore be held to be one passed, under the inherent powers of the Court, under Section 151 of the Civil Procedure Code. Hence no question of jurisdiction arises out of that order of review. The revision petition, also is thus not maintainable.

4. The Railway however have taken the further precaution of filing a regular appeal against the judgment and decree in the main suit, as modified by the order of review. Mr. Pal for the Union of India stated that at the time of the hearing of that appeal (F. A. 39 of 1961) he will be entitled by virtue of Section 105 of the Civil Procedure Code to challenge the review order on the ground of error, defect or irregularity affecting the decision of the case. Mr. Murty challenged this contention, but we express no opinion on this question at this stage. It will be considered when the appeal is heard on merits.

5. For these reasons M.A. 50 of 1961 and C.R. 149 of 1961 are both dismissed as non-maintainable. But we make no order for costs.

Barman, J.

6. I agree.


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