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Pakkiri Muhammad Rowther Vs. L. Swaminatha Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad573; (1938)1MLJ796
AppellantPakkiri Muhammad Rowther
RespondentL. Swaminatha Mudaliar
Cases ReferredBrojo Lal Rai Chowdhury v. Tara Prasanna Bhattacharji
Excerpt:
- - 150 :where the learned judges pointed out that in the contemplation of law, an amended decree must be taken as in force from the date of the original decree,,as there is a well-founded distinction between a case of amendment and a case of novation or substitution. 188 .9. in the result, we must hold that the second appeal was perfectly competent and that the preliminary objection ought not to have been allowed to prevail......subsequent to the filing of the appeal. the question to decide is whether there was in law a new decree passed, which had the effect of discharging the original decree. we regret to say we are constrained to differ from the learned judge's view. if the course of the proceedings be carefully followed, it will be seen that nothing was done, which could be said to have had the legal effect of vacating the decree, from which the second appeal was filed.2. the facts relevant to the question at issue may be briefly stated. the plaintiff, alleging that he became the purchaser of the suit property, sued the defendants for possession. their defence was that some amount was due to them, and the trial court after over-ruling the plea, gave judgment for the plaintiff. it must be mentioned that the.....
Judgment:

Venkatasubba Rao, J.

1. Pandrang Row, J., dismissed the second appeal, giving effect to an objection, in limine, that the decree from which it was filed, was superseded by a fresh decree that was passed subsequent to the filing of the appeal. The question to decide is whether there was in law a new decree passed, which had the effect of discharging the original decree. We regret to say we are constrained to differ from the learned Judge's view. If the course of the proceedings be carefully followed, it will be seen that nothing was done, which could be said to have had the legal effect of vacating the decree, from which the second appeal was filed.

2. The facts relevant to the question at issue may be briefly stated. The plaintiff, alleging that he became the purchaser of the suit property, sued the defendants for possession. Their defence was that some amount was due to them, and the trial Court after over-ruling the plea, gave judgment for the plaintiff. It must be mentioned that the property, as was admitted, was held in two distinct shares; one by the first defendant and the other by his brother the second and the latter's son the third. The first defendant alone appealed, without impleading defendants 2 and 3 the owners of the other part. The District Judge, giving effect to the defendant's contention, reversed the Munsiff's judgment and dismissed the suit. It is from his order of dismissal that the second appeal referred to above was filed. The appellate Judge, it will be seen, committed an obvious mistake; he could have dismissed the suit, even on his own finding, against the first defendant alone, whereas he dismissed it in toto. Thereupon the plaintiff applied for a review of the District Judge's decree and put forward-two grounds in support of his application : first, that subsequent to the date of the Munsiff's judgment but prior to that of the appellate judgment, there was a decision given in a certain suit which negatived the defendant's right to the unpaid purchase money, by whatever name, it might be called and secondly, that the dismissal of the suit as against the second set of defendants was an error apparent on the face of the record.

3. Before proceeding further, we may mention the relevant dates : (1) the lower appellate Court's decree was passed on 7th August, 1930; (2) the review application was made on 12th September, 1930; (3) the second appeal was filed on 9th January, 1931; and (4) the order on the review petition was passed on 14th November, 1931.

4. We may at the outset refer to the valuable observations of Jenkins, C.J., as to the three stages of a review application. The first is the ex parte stage when the Court may either reject the application at once or may grant a rule calling the other side to show cause why review should not be granted. In the second stage the rule may either be admitted or rejected. If the rule is discharged, the case ends then and there; if on the other hand the rule is made absolute, then the third stage is reached. The case is then neared on the merits and may result in a repetition of the former decree or in some variation of it. In either case, the whole matter having been re-opened, there is a fresh decree Vadilal v. Fulchand I.L.R.(1905) 30 Bom. 56. This analysis by Jenkins, C.J., of the three successive stages is of fundamental importance, as observed by Mookerjee, J., in Gour v. Nilmadhab (1922) 36 C.L.J. 484.

5. The question that arises is whether the order to be presently referred to, on the review petition, was one passed in the second or in the third stage. As already said, the review was based on two grounds. So far as the petition prayed that the order dismissing the suit should be confined to the first defendant alone, the relief asked for was granted. To this extent, though the Judge purported to act under the review provisions of the Code, he must in truth be deemed to 'have used his powers under Section 152, Civil Procedure Code.

6. Notice was served on defendant 1 only but the order he made affected. defendants 2 and 3 prejudicially and it is inconceivable that he would have made it without notice, to them under the review chapter. No adverse order can be made under the review sections without notice to the party affected. On the other hand, the error which was rectified was, as the Judge later realised, due to an accidental slip and under Section 152 that could be rectified as a matter of course without notice. So much then for the second ground on which the review petition was founded. Then turning to the first ground, the Judge held that the judgment relied on, by way of fresh evidence, was previously available and ought to have been produced at the hearing. Holding that there was no sufficient cause for its non-production in time, he rejected that part of the petition. To use the Judge's words, he refused to grant review which (as will be evident from Rules 4, 7 and 8 of Order 47) meant that that he dismissed the application in the second stage. As pointed out by Jenkins, C.J., in the case already cited, the hearing of the rule in the second stage may involve to some extent an investigation into the merits. That does not affect the character of the order made, for, in each case the Court has to decide, at what stage has the order been made and what is its effect. In the present case, as in Vadilal v. Fulchand I.L.R.(1905) 30 Bom. 56 the order made must be deemed as one passed in the second and not in the third stage. This being so, there is no reason for holding that a fresh decree, was passed superseding the original one. If the rule is discharged in the second stage, 'the parties are relegated to, and still rest on the old decree'. Vadilal v. Fulchand I.L.R.(1905) 30 Bom. 56 and Gour v. Nilmadhab (1922) 36 C.L.J. 484 .

7. It may not be out of place to mention here that it becomes sometimes difficult, when the review is refused, to ascertain whether the order is one made in the second or in the, third stage. Under Order 47, Rule 8, when an application for review is granted (which means when the rule is made absolute), the Court has the option either to re-hear the case at once or adjourn it to a future date for hearing. But the Court is required, on making the order absolute, to make a note thereof in the register. Where this rule is not complied with and the ultimate order is that the petition is refused, some ambiguity is introduced and the matter becomes difficult to decide. It is incumbent on the Courts to appreciate the difference between the 2nd and the 3rd stages and not leave the question in obscurity. Turning to the present case, the Judge made no note that the review was granted, and why should we hold, in spite of it, that he in fact granted the review? In other words, why should it be held, especially when the indications are the other way, that he infringed a mandatory provision?

8. Going back to the second ground for a moment, the correcting of art error arising from an accidental slip does not bring into existence a fresh decree. This has been laid down in Pydel v. Chathappan I.L.R.(1890) 14 Mad. 150 :

where the learned Judges pointed out that in the contemplation of law, an amended decree must be taken as in force from the date of the original decree,, as there is a well-founded distinction between a case of amendment and a case of novation or substitution. Brojo Lal Rai Chowdhury v. Tara Prasanna Bhattacharji (1905) 3 C.L.J. 188 .

9. In the result, we must hold that the second appeal was perfectly competent and that the preliminary objection ought not to have been allowed to prevail. The Letters Patent Appeal is allowed and each party will bear his costs incurred in the High Court. The second appeal will now have to be heard and we direct that its hearing shall be expedited. The court-fee paid on the memorandum of Letters Patent Appeal will be refunded.


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