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Pudipeddi Laxmi Narasamma Vs. Benu Naide - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 232 of 1955
Judge
Reported inAIR1957Ori230; 23(1957)CLT425
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rules 1 and 2
AppellantPudipeddi Laxmi Narasamma
RespondentBenu Naide
Advocates:M.S. Rao, Adv.
Cases ReferredDebi Sahai Gulzarimal v. Basheshar Lal Bansidhar
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........order 47, rule 2 of the civil procedure code, there being an error apparent on the face of the decree. rule 2 of order 47 runs as follows: 'an application for review of a decree or order of a court not being a high court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree shall be made only to the judge who passed the decree or made the order, sought to be reviewed; but any such application may, if the judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2) proviso (a)be disposed of by his successor.'5. rule 1 of order 47 provides that the application for review of a decree or.....
Judgment:
ORDER

Das, J.

1. This is a plaintiff's application in revision against the order of the learned Munsif of Berhampur, dated 21-7-55 refusing to exercise the cowers under Order 47, Rule 2 of the Code of Civil Procedure. The facts giving rise to the present application are as follows: The plaintiff's original suit was transferred to the court of the first additional Munsif who delivered an ex parte judgment on 30-9-54. The plaintiff in that suit claimed title through one Londa Naik who died leaving his son Arbhito and widow Kami. Defendant-2 who ultimately was expunged from record on a memo, filed by the plaintiff, purchased at auction sale the interest of Arkhito in the execution of a decree. The plaintiff appears to have purchased the said interest from defendant-2 on 22-7-17 and delivery of possession was prayed for. Thelearned Additional Munsif passed a decree in respect of half of the suit property in favour of theplaintiff holding that defendant-2 could not purchase the entire interest of Londa as the decree was executed against his son Arkhito only; while Kami the widow had the other half of the interest under the Hindu Women's Rights to Property Act. Thus, the interest of the widow Kami had not passed to the plaintiff's vendor. The plaintiff by his petition in the court below sought a reviewof the judgment on the ground that Arkhito was sued in the execution proceedings against him as the Manager of a Joint family, and that the Hindu Women's Rights to Property Act was extended to agricultural lands in Orissa by Orissa Act, V of 1944. The purchase in court auction admittedly was on 10-1-1944. The Act referred to above received assent of the Governor on 8-4-44, that is, about three months thereafter. Thus, it is obvious that Kami had not acquired any interest as the had no right, because Orissa Act V of 1944, had not been enforced by that time. It was contended that this was an error apparent on the face of the record. I may mention here that the Additional Munsif's Court which passed the impugned decree was abolished and the present application was, therefore, filed, in the court of the regular Munsif and the petitioner contended that the Succeeding court being in charge of the first Additional Munsif's Court can review the judgment.

2. Defendant-1 filed a counter to the above petition or the plaintiff denying the allegations and contended that this review petition is not maintainable as the succeeding judge has no power, it not being an error apparent on the face of the record and that the petition was barred by limitation.

3. Thus, the facts as emerge prior to the filing of this petition are that the plaintiff's vendor Sanyasi obtained a decree in the small cause court suit No. 317 of 1940 against Arkhito only and in E.P. no. 226 of 1946, he purchased the suit-lands through court-sale on 10-1-1944. Orissa Act V of 1944 extending the Hindu Women's Rights to Property Act to agricultural holdings came into force on 8-4-44. Hence, Kami had not acquired any interest by the time the plaintiff's vendor purchased at the court-sale. Thus, the widow Kami having no interest and Londa's son Arkhito having the full interest in the suit-property, the plaintiff's vendorpurchased the same and accordingly, the plaintiff is entitled to the full interest in the disputed property. The preliminary question that was raised in the court below was whether the succeeding court had the powers of a review under Order 47, Rule 2, of the Civil Procedure Code. The learned Munsif who heard the said petition came to the conclusion that he had no such power, and accordingly, dismissed M. J. C. No. 9 of 1955. It is against this order that the present application is directed.

4. Mr. M.S. Rao, learned counsel appearing on behalf of the petitioner, contended that the learned Munsif had the power under Order 47, Rule 2 of the Civil Procedure Code, there being an error apparent on the face of the decree. Rule 2 of Order 47 runs as follows:

'An application for review of a decree or order of a Court not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree shall be made only to the Judge who passed the decree or made the order, sought to be reviewed; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under Rule 4, Sub-rule (2) proviso (a)be disposed of by his successor.'

5. Rule 1 of Order 47 provides that the application for review of a decree or order should be made to the Court which passed the decree or order sought to be reviewed on the ground of discovery of a new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the petitioner or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of record or for any other sufficient reason. In the rules referred to above, two different expressions have been used. While the Legislature uses the expression 'to the Court' in Rule 1, it uses the expression 'to the Judge' in Rule 2. Now Rule 1 read with Rule 2 leads to the following conclusion, viz., where a decree is passed by a judge of the High Court the application for review of the decree may be made to that judge or to his successor in office whatever may be the ground on which the review is sought for. But where a decree is passed by a judge other than a High Court Judge, the application for review of a decree may be made to the judge who delivered the judgment or to his successor in office, provided the review is sought on the following two grounds, viz., (1) discovery of a new and important matter or evidence; (2) some clerical or arithmetical mistake or error apparent on the face of the decree. Where a decree is passed by a judge other than a High Court Judge and a review is sought not upon the grounds mentioned above, but upon other grounds, the application shall be made to the very judge who passed the decree. It cannot be made to his successor in office, Mr. Rao contended that he comes under the second ground mentioned in Rule 2, that is, error apparent on the face of the decree. Mr. Rao, in support of his contention, relied upon a decision of the Calcutta High Court reported in Wahed Ali v. Chand Mia 52 Ind Cas 29 : (AIR 1919 Cal 94) (A) where it was held that the omission of the Court and the pleaders to notice certain provisions of the Code which might govern a case would be a 'sufficient reason' there being an error apparent on the face of the record, within the meaning of Order 47, Rule 1, for granting a review. Mr. Rao also relied upon a decision Of the Madras High Court reported in Paramasivam Pillai v. Perijanayagathammal 32 Ind Cas 527: (AIR 1917 Mad 157) (B) where it was held that every court has an inherent power to review its Judgment by setting aside an order passed either under a mistake of the judge or obtained by a fraud upon the court. Reliance was next placed upon a decision reported in Kathyumma v. Muhammad Kutty, AIR 1926 Mad 1083 (C). Ramesam, J. in that case held that a review petition on the ground of an accidental slip is entertain-able before the successor of the judge who disposed of the case. Reference may also be made to a decision reported in Debi Sahai Gulzarimal v. Basheshar Lal Bansidhar AIR 1928 Lah 919 (D) where it has been held that where a court fails to apply the law to the facts found, and when such an error is apparent on the face of the decree, it can be made a ground for a review. It therefore necessarily follows from the above decisions that the succeeding judge had the power under Order 47. Rule 2, read with Rule 1 to review the judgment when there is an error apparent on the face of the decree. I would accordingly set aside the order of the learned Munsif dated 21-7-55, and direct him to dispose of the application in accordance with law. In the result, the rule is made absolute. Since there was no appearanceon behalf of the opposite party, there would beno order as to costs.


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