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Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu Vs. Sri Rajah Lanka Venkata Rattamma Garu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad293; (1939)1MLJ120
AppellantSri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu
RespondentSri Rajah Lanka Venkata Rattamma Garu
Cases ReferredLahiri and Co. v. Makhan Lal Basak
Excerpt:
.....to any one who is well versed in the statute under which the appeal itself was..........the error.4. the leading decision of this court on the question whether an error of law can be an error apparent on the face of the record such as is contemplated in order 47, rule 1, civil procedure code, is that of murari rao v. balavanth dikshit : air1924mad98 , where the bench approved of an order in review, treating as an error of law apparent on the face of the record one which was only apparent to a person acquainted with a particular ruling of this court on a question of succession. that is to say, the case was one which was much weaker as a case for review, than the present case m which the error of law consists in overlooking a statutory provision, which, if not overlooked, would have made it clear to the court that the court had no jurisdiction to entertain the appeal at all......
Judgment:

Wadsworth, J.

1. The appeal and the revision petition have been heard together because they both arise out of the same litigation, but the questions raised in them are really quite different.

2. In the second appeal the only question is whether the lower Court was wrong in law in refusing to excuse the delay in filing the appeal. Quite clearly the lower Court was not wrong in its decision at all unless an application for copies filed on 10th August, 1932, can be regarded as an application not only for a copy of the judgment but also for a copy of the decree. The application in terms only asks for 'a copy of the order' and it was not until 3rd September, 1932, that, a memorandum was filed asking that the decree might be drafted and a copy of it might be granted. Now, if time had been running against the appellant until 3rd September, 1932, his appeal was time-barred. I am unable to say that the lower appellate Court committed any legal error in holding that the earlier application dated 10th August, 1932, was not an application for a copy of the decree and that there were no grounds for excising the delay. The result therefore is that the second appeal is dismissed with costs. Leave to appeal is refused.

3. The Civil Revision Petition relates to an order in review of an appellate judgment restoring a suit which had been dismissed for default. The review judgment was passed by a different District Judge from the gentleman who originally allowed the appeal, but this point is not 1 think material for the Judge who decided the appeal in the first instance actually admitted the review application and ordered notice of it. Now, the error which was put forward as an error on the face of the record justifying interference in review was an error of law which went to the root of the jurisdiction of the District Court which heard the appeal By Section 192 of the Madras Estates Land Act, Order 43, Civil Procedure Code, is excluded from the provisions governing procedure under the Estates Land Act. Therefore no appeal lay against the order of the Deputy Collector refusing to restore the suit which had been dismissed for default. It follows that the error of the learned Judge in allowing such an appeal was one which was apparent on the face of the record to any person well acquainted with the provisions of the Act by which the appeal was governed. No research was necessary into rulings in order to discover the nature of the error.

4. The leading decision of this Court on the question whether an error of law can be an error apparent on the face of the record such as is contemplated in Order 47, Rule 1, Civil Procedure Code, is that of Murari Rao v. Balavanth Dikshit : AIR1924Mad98 , where the Bench approved of an order in review, treating as an error of law apparent on the face of the record one which was only apparent to a person acquainted with a particular ruling of this Court on a question of succession. That is to say, the case was one which was much weaker as a case for review, than the present case m which the error of law consists in overlooking a statutory provision, which, if not overlooked, would have made it clear to the Court that the Court had no jurisdiction to entertain the appeal at all. Now, the correctness of the decision in Murari Rao v. Balavanth Dikshit : AIR1924Mad98 has been doubted in a judgment of Waller, J., which resulted in a reference to a Full Bench in the case of China Venkatappayya v. Punnayya (1932) 65 M.L.J. 173 (F.B.). The learned Judge says:

Speaking for myself, I cannot understand how a mistake of law can be apparent on the face of the record. It may be apparent from a contrary decision of a superior Court, but that is not a part of the record.

5. The Full Bench which dealt with the reference found it unnecessary to decide the question whether a Judge has power to review his order on the ground of an error of law. I may remark that Krishnan Pandalai, J., who was also a member of the referring Bench along with Waller, J., took a different view from that of his learned brother. The position therefore is that the decision in Murari Rao v. Balavanth Dikshit : AIR1924Mad98 stands as an authoritative decision of a Bench of this Court. If the authority of that decision is ever to be shaken, it seems to me that it will not be shaken by a decision, on facts such as those now before me where it is not a question of the error being one which would be apparent only to a person who had made the necessary research into the case-law, but the error is one involving a wrongful assumption of jurisdiction and is apparent to any one who is well versed in the statute under which the appeal itself was filed. I may say that there is a decision of the Calcutta High Court, namely, Lahiri and Co. v. Makhan Lal Basak : AIR1935Cal153 to the effect that a decision which is obviously erroneous because it overlooks a clear want of jurisdiction is one which can be corrected in review. It seems to me that when there is an error of law which obviously and without research into the rulings involves a lack of jurisdiction to pass the order of which review is sought, it is eminently a case in which the error though technically an error of law, is apparent on the face of the record and should be corrected at the earliest possible time without driving the parties to the expense of an appeal or revision petition to which there would be no answer.

6. The Civil Revision Petition is therefore dismissed with costs.


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