1. This is an application by Harlal for review of judgment of the Ijlas-i-khas of the former State of Jodhpur and has come to us for disposal in view of the provisions of Ordinance No. XL of 1949 and Ordinance No. XII of 1950.
2. The application was made in the following circumstances. A suit had been filed by one Bhoordan for redemption of certain mortgaged property and Harlal was one of the defendants. The suit was decreed by the trial Court. Then there was an appeal to the Judicial Superintendent of Phalodi which was also dismissed. The matter went in second appeal to the High Court, of the former State of Jodhpur and the High Court set aside the decree of the two lower Courts and dismissed the suit holding that the plaintiff had failed to prove the mortgage set up. Thereupon, there was an appeal to the Ijlas-i-khas which was heard on the 18th of March 1948 and was accepted on the 26th of December, 1948 by His Highness the Maharaja of the former State of Jodhpur on the advice of the Members of the Ijlas-i-khas. Thereafter, the present application for review of judgment of the Ijlas-i-khas was made.
2A. A preliminary objection has been raised on behalf of the opposite party to the effect that this Court cannot hear the review application and it should be dismissed. Learned counsel for the opposite parties relies on Order 47, Rule 2 which is 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 exercise 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 underRule 4, Sub-rule (2), proviso (a), be disposedof by his successor.'
3. The present application for review is said to be based on an error apparent on the face of the record and it is therefore, contended that Order 47, Rule 2 applies and as the Judge who had passed the decree or made the order had not ordered notice to issue, the application cannot be heard by this Court which is the successor to the Judge, who in this case was His Highness the Maharaia of the former State of Marwar,
4. The first question that arises in this connection is whether Order 47, Rule 2 applies to proceedings before the Ijlas-i-khas. This rule does not apply to High Court, nor does it apply to the Privy Council by virtue of Section 112 of the Code of Civil Procedure as it stood before the Adaptation of Laws Order, 1950. Though the Civil Procedure Code applied to the former State of Marwar, certain provisions had been omitted in its application to that State and one such provision was Section 112. In view of the omission of this Section, Order 47, Rule 2 applied to the Ijlas-i-khas. This is also clear from the Rules regarding Appeals and Petitions to His Highness the Maharaja Sahib Bahadur (Ijlas-i-khas) which were in force in the former State of Jodhpur since 8th of November, 1945. Rule 4 provided that subject to the provisions of these Rules, the procedure laid down in the Marwar Civil Procedure Code shall apply to all appeals and petitions other than criminal appeals and petitions. There was no rule in these rules of the Ijlas-i-khas which fa any way modified Order 47, Rule 2. Therefore, any application for review on grounds other than those mentioned in Order 47, Rule 2 had to be made to the Judge concerned, who in this case was His Highness the Maharaja of Jodhpur. The present petition was filed on the 4th of April 1949. It was thus presented to the same Judge who had disposed of the appeal by his order dated 26th of December 1948, namely, His Highness the Maharaja Shri Hanwant Singh of the former State of Jodhpur. But notice under Rule 4 (2) was not issued by His Highness the Maharaja but was issued by this Court on the 23rd of January 1951. It is, therefore, contended that as the notice was not issued by His Highness the Maharaja, who was the Judge who passed the decree, this Court which is the successor to the Ijlas-i-khas cannot dispose of this application for review in view of Order 47, Rule 2. We are of opinion that this preliminary objection is correct and must prevail.
Learned counsel for applicant argued that the matter is now before the High Court and Order 47, Rule 2 does not apply to a High Court and, therefore, this Court can dispose of the application. We cannot, however, accept this contention. The application was made to the Ijlas-i-khas of the former State of Jodhpur to which Order 47 Rule 2 applied. It will, therefore, have to be disposed of subject to the provisions of Order 47, Rule 2 and the fact that the successor Court is a High Court would not affect the application of Order 47, Rule 2.
It may look strange that while Order 47, Rule 2 did not apply to the High Court, it applied to the Ijlas-i-khas of the former State of Marwar. But it may be that His Highness the Maharaja of Jodhpur, who was the Ijlas-i-khas,might have thought it fit to apply Order 47, Rule 2to such petitions for review as he might havethought that such petitions as were not covered by the exception in Rule 2 should be madeto the particular Ruler who had passed thedecree or made the order and not to his successor. In any case, the words of Order 47, Rule 2are quite clear and, therefore, this Court asthe successor to Ijlas-i-khas cannot dispose ofthis application as notice was not issued bythe Ijlas-i-khas.
5. Learned counsel for applicant further drew our attention to Rule 3 of the Ijlas-i-khas Rules. This rule provides that nothing in these Rules shall be deemed to bar the full and unqualified exercise of His Highness' pleasure in receiving appeals and petitions and in dealing with them in whatsoever manner he deems fit. This provision is somewhat similar to Section 112(1) (a) of the Civil Procedure Code which, of course, was omitted from the Marwar Civil Procedure Code. It is urged on behalf of the applicant that we should exercise the power contained in Rule 3. It is enough, however, to point out that Section 3 of Ordinance No. XL of 1949 abolished the jurisdiction of the Ruler of a Covenanting State to entertain appeals, revisions, references or petitions and this the Ijlas-i-khas of the former State of Mar-war abolished. Section 4 made a provision for pending appeals etc. and it is under that provision read with Ordinance XII of 1950 that we are hearing this application. But though We are a successor Court to the Ijlas-i-khas, we are not the Ijlas-i-khas itself and, therefore, the power which was reserved by Rule 3 of the Ijlas-i-khas Rules in His Highness the Maharaja of Jodhpur has not devolved on Us and we are bound by the rules in the Civil Procedure Code when dealing with pending appeals etc. from the Ijlas-i-khas of any of the Covenanting States. Rule 3 of the Ijlas-i-khas really lays down the prerogative of the Ruler and that prerogative has not become vested in this Court when dealing with such pending matters. Rule 3, therefore, of the Ijlas-i-khas Rules cannot help the applicant.
6. Lastly, It was urged on behalf of the applicant that there was error apparent on the face of the decree. The review application dated the 4th of April, 1949, however, makes out no such case. It is not possible for us to allow the applicant to make out a new case particularly when Section 3 of Ordinance No. XL of 1949 has abolished the Ijlas-i-khas of the former State of Marwar. If we allow the petition to be amended by adding this ground, it would mean that the applicant is now presenting an application for review on fresh ground when no such application can be presented in view of Section 3 mentioned above.
7. We, therefore, accept the preliminary objection and hold that we cannot entertain thematter in view of Order 47 Rule 2. The applicationis rejected but under the peculiar circumstances of this (case?) we pass no order as tocosts of this application.