1.This is an application for the review of our order passed in L. P. A. No. 94 of 1949. . The appeal was dismissed on the ground that it had not been properly filed. The appeal purported to be on behalf of Sube Singh and his two minor brothers through the guardianship of Sube Singh. It was brought to our notice that an officer of the Court had been appointed as guardian-ad-litem of the minors. He was not removed and Sube Singh was not substituted in his place. The appeal should therefore have been filed by the officer of the Court. Sube Singh was not the properly appointed guardian and so the appeal was dismissed not having been properly filed. It is this order of dismissal which is sought to be reviewed by the present petition.
2. A preliminary objection is taken by Mr. Daya Krishan Mahajan that no application for the review of an order passed in a Letters Patent appeal lies. He has drawn our attention to the wording of Section 114, Civil P.C.and two reported decisions of the Allahabad and Patna High Courts respectively. In --Mt. Abhilakhi v. Sada Nand', 53 All 535, a Full Bencii of three Judges was constituted to consider this point. Two of the Judges took the view that no application for the review of an order passed in a Letters Patent Appeal could be made. Mukerji J., however, dissented from this view. I have carefully considered the wording of Section 114, Civil P.C., and am constrained to observe with great respect that the majority of the learned Judges constituting the Full Bench were not justified in holding that Section 114 does not apply to an order passed in a Letters Patent appeal. The question which the learned Judges considered was whether Section 114, Civil P. C. does or does not apply to Letters Patent appeals. The point for consideration, however, is a wholly different one, namely whether the wording of Section 114, Civil P. C., covers an order passed in a Letters Patent appeal.
Section 114 does not govern the procedure of appeals filed under the Letters Patent; it merely deals with the question of review. The section reads as follows :
'Section 114. Subject as aforesaid, any person considering himself aggrieved :
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which pass-ed the decree or made the order, and the Court may make such order thereon as it thinks fit.'
3. There can be no doubt that judgmentspassed in Letters Patent appeals are recognised by the Code of Civil Procedure. Suchorders are either appealable to the SupremeCourt or not appealable and Section 109, Civil P.C.shows that appeals under the Civil P. C. areallowed from orders passed in Letters Patentappeals. Therefore it is clear that Section 114(a)and (b) cover such judgments. A judgmentpassed in a Letters Patent appeal is eitherappealable to the Supreme Court under theCivil P.C. or not so appealable. The fact thatthe Letters Patent appeal itself is filedunder the provisions of the Letters Patent andnot according to the procedure laid down inthe Civil P.C. makes no difference whatsoever to the petition for review. All we haveto consider is whether the judgment under review is appealable or not. If it is appealable,it falls under Section 114(a) and if it is not soappealable it falls under Section 114(b). In my view,no other interpretation can be placed uponthe wording of Section 114 and I am constrained todiffer from the view expressed by the majority of the Allahabad Judges in the case referred to.
The Patna case is -- 'Inder Mahton v. Ham-kishun Missir', AIR 1931 Pat 409. In this case Courtney-Terrell C. J. held, following the Allahabad High Court that no application for the review of an order passed in a Letters Patent appeal lay. I have carefully considered the reasoning given - by the learned Chief Justice but I find myself unable to accept his interpretation of Section 114, Civil P. C There are decisions of the Bombay and Madras High Courts to the contrary, vide -- Ratanchand Khimchand v. Damji Dharsey', AIR 1927 Bom 232 and -- Venkata Subbarayudu v. Govinda Krishna Yachendrulu Varu', 40 Mad 651.
4. It will indeed be surprising if an error patent on the record in a Letters Patent appeal could not be corrected when such error can be corrected in almost every other type of orders which Courts pass, and if Section 114, Civil P.C., was not intended to cover an order passed in a Letters Patent appeal I should be inclined to entertain an application for review under the inherent jurisdiction of this Court, but for reasons which I have stated above I am clearly of the view that Section 114 covers such cases. There is therefore no force in the preliminary objection and I would entertain the application for review.
5. On merits, there is considerable force in the argument of Mr. Shamair Chand that the appeal having been filed by Sube Singh major on his own behalf also it was competent at least in so far as his claim was concerned. Sube Singh could not file the appeal on behalf of his minor brothers because he was not the properly appointed guardian-ad-litem to represent their interests, but his own interests in the appeal were properly represented and therefore the dismissal of his appeal was due to an error and this error can be rectified in review. Mr. Shamair Chand has also drawn our attention to the provisions of Order 41, Rule 4, Civil P.C., whereby if one of several plaintiffs appeals successfully the appeal of the others may also be allowed. On this point Mr. Daya Krishan Mahajan has cited before us --'Nanak v. Ahmad Ali', 48 Pun LR 141 (FB). That case, however differs from the present one inasmuch as we have before us the case of minors and Order 41, Rule 4, Civil P.C., does not say anything about the non-appearing plaintiffs (or defendants) being made parties to the appeal. In the circumstances, I would allow the application of Sube Singh made both on his own behalf and on behalf of his minor brothers. It it scarcely necessary to say that the appeal on merits must succeed for the reasons given in our judgment in L. P. A. No. 90 of 1949.
6. The result is that the appeal of Sube Singh and his minor brothers is allowed but we make no order as to costs.
7. I agree.