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Rekanti Chinna Govinda Chettyar and ors. Vs. S. Varadappa Chettyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1939)2MLJ809
AppellantRekanti Chinna Govinda Chettyar and ors.
RespondentS. Varadappa Chettyar and ors.
Cases ReferredKyone Hoe Tsee v. Kyon Soon Sun I.L.
Excerpt:
- .....present appeal is directed against the decree passed on re-hearing and the only point urged by the learned counsel for the appellants is that the lower appellate court had no jurisdiction after it delivered and signed the judgment on the 23rd september, 1935, to alter it in any manner, in view of the provisions of order 20, rule 3, civil procedure code, and that therefore the revised decree passed by the lower appellate court as a result of the re-hearing on the 21st november, 1935, is one passed without jurisdiction and cannot stand. the appellants' counsel has relied upon several decisions showing that after a judgment has been signed by the judge, he has no authority to alter it except as provided by section 152 or order 47 of the code of civil procedure. but it is unnecessary to.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of a suit brought by the appellants for a declaration of their title to the wall existing between their house and the house belonging to the respondents and for an injunction restraining the respondents from letting the water from the terrace of their house into the appellants' property.

2. The trial Court dismissed the suit and on appeal the parties filed a joint memo, agreeing to a certain arrangement regarding the disposal of the water falling from the terrace of the respondents' house and this arrangement was directed to be incorporated in the decree and no question now arises as to that part of the case. As regards the wall in dispute, the learned Subordinate Judge found that it belonged to the appellants and accordingly decreed that part of the appellants' claim. This was on the 23rd September, 1935. After the judgment was signed and the decree also was issued in accordance with the judgment, the respondents filed I.A. No. 63 of 1935 on the 15th of October, 1935, in which they prayed for a re-hearing of the appeal. The ground of the prayer was that though the trial Court had found that the wall belonged to the respondents, their advocate represented to the Court that they would have no objection to the wall being held to be a common wall and that under the impression that the Court would, in consequence of this concession, give a finding accordingly, he did not meet the points mentioned by the appellants' advocate, though he had arguments to urge in support of the finding of the trial Court. The respondents having denied the allegations in the appellants' affidavit in support of the prayer for re-hearing, the lower appellate Court apparently called for a statement from the Counsel on both sides as to what exactly happened at the previous hearing and a joint statement was filed on the 30th of October, 1935, and this was supplemented by a further explanatory statement by the respondents' Counsel. Thereupon, the Court below passed the following order on I. A. No. 68 of 1935 on the 31st of October, 1935:

In view of the joint statement filed by the learned Advocates that appeared for the parties and of the explanatory statement filed by the learned Advocate for the applicant, I think it fair and just that he should be given an opportunity to argue his case fully. The appeal will therefore be posted for re-hearing on 21st November.

3. The appeal was thus re-heard and the learned Subordinate Judge came to the conclusion that the wall in dispute was a common wall belonging to both the parties and passed a decree accordingly in supersession of his earlier decree.

4. The present appeal is directed against the decree passed on re-hearing and the only point urged by the learned Counsel for the appellants is that the lower appellate Court had no jurisdiction after it delivered and signed the judgment on the 23rd September, 1935, to alter it in any manner, in view of the provisions of Order 20, Rule 3, Civil Procedure Code, and that therefore the revised decree passed by the lower appellate Court as a result of the re-hearing on the 21st November, 1935, is one passed without jurisdiction and cannot stand. The appellants' Counsel has relied upon several decisions showing that after a judgment has been signed by the Judge, he has no authority to alter it except as provided by Section 152 or Order 47 of the Code of Civil Procedure. But it is unnecessary to discuss these decisions as, in my view, the respondents' contention that the present case could be regarded as coming within the provisions of Order 47 and that though this provision was not referred in the respondents' application for re-hearing, I.A. No. 68 of 1935, the decree of the Court below can be sustained as one made on review, is correct and must be accepted in the circumstances of the case.

5. The appellants' counsel objects that having regard to the Privy Council decision in Chhaju Ram v. Neki (1922) 43 M.L.J. 332 : L.R. 49 IndAp 144 : I.L.R. 3 Lah. 127 , holding that the expression 'any other sufficient reason' in Order 47, Rule 1 must be taken as meaning ' a reason sufficient on grounds at least analogous to those specified immediately previously,' the power of review conferred by that provision cannot appropriately be invoked, in this case. I am unable to agree. I cannot see why the facts disclosed in the statements of the learned Counsel who appeared for the parties in the Court below which were accepted and acted upon by that Court should not be held to be a sufficient reason for reviewing the judgment delivered on 23rd September, 1935, even according to the restricted interpretation placed upon R 1 of Order 47 in Chhaju Ram v. Neki (1922) 43 M.L.J. 332 : L.R. 49 IndAp 144 : I.L.R. 3 Lah. 127 . There was of course no mistake or error apparent on the face of the record in this case. If there were, that would obviously be a sufficient ground by itself for a review. But the misapprehension owing to which the learned Counsel for the respondents says he did not urge all his arguments in support of the finding recorded in favour of his clients by the first Court, and the consequent erroneous impression, on the part of the learned Subordinate Judge or which, of course, he was not at all to blame but the Counsel was alone responsible - that the latter had no arguments to urge to meet the points raised by the appellants' Counsel seem, to my mind, to be analogous enough to an error apparent on the face of the record to be a sufficient reason for review under Order 47, Rule 1, Civil Procedure Code. The decisions in Kyone Hoe Tsee v. Kyon Soon Sun I.L.R (1925) 3 R. 261 at 267 and Nagabhushanam, v. Jagannaikulu : (1925)49MLJ671 , which recognise a power of review in cases of mistake of Counsel or mistake of the Judge leading to errors in the judgment though not apparent on the face of the record, seem to support this conclusion.

6. The appeal therefore fails and is dismissed with costs.

7. No leave.


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