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Rao Bahadur Mothey Gangaraju Zamindar Garu of Ellore Vs. Sree Raja Bommadevara Venkatrayulu Naidu Bahadur Zamindar Garu of Pangidigudem - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad235; (1942)2MLJ716
AppellantRao Bahadur Mothey Gangaraju Zamindar Garu of Ellore
RespondentSree Raja Bommadevara Venkatrayulu Naidu Bahadur Zamindar Garu of Pangidigudem
Excerpt:
.....it is necessary to consider before passing a fresh order. it is now argued for the respondent that rule 93 is not exhaustive in this respect and that even though under rule 93 there was no power in the court to pass any order for the payment of interest, such a power is inherent in the court and can be invoked under the provisions of section 151. there is no authority in support of this contention, and it is a well-known principle of law that, where special provisions exist in the code to deal with particular situations, section 151 cannot be invoked. i am accordingly of opinion that the learned subordinate judge was right when he held that he was entitled to review his previous order under the provisions of order 47. 3. in the result this civil revision petition must fail and the..........was informed that he should apply to government if he wished to obtain refund of the poundage. the decree-holder was dissatisfied with this order in so far as it called upon him to pay interest and he applied under order 47 for review. the learned subordinate judge granted the review and passed an order refusing to call upon the decree-holder to pay any interest to the auction purchaser. he also reviewed that part of his previous order which dealt with the question of poundage holding that one half of the poundage should be paid by the decree-holder to the auction purchaser and that in respect of the other half, he should apply to government. it is the decree-holder who is the present petitioner. although he is satisfied with the review in so far as it, frees him from the liability of.....
Judgment:

King, J.

1. The parties in this petition are decree-holder and auction purchaser respectively in the matter of a sale held in 1933. The auction purchaser, of course, deposited the money required including poundage, and this money remained in Court for four years. In the meanwhile the judgment-debtor initiated proceedings which resulted in the setting aside of the sale. The auction purchaser accordingly applied for the return of his purchase money and also for the return of poundage. The first order which was passed by the learned Subordinate Judge of Ellore was on the 25th November, 1939. In that order the return of the money with interest was ordered, but the petitioner was informed that he should apply to Government if he wished to obtain refund of the poundage. The decree-holder was dissatisfied with this order in so far as it called upon him to pay interest and he applied under Order 47 for review. The learned Subordinate Judge granted the review and passed an order refusing to call upon the decree-holder to pay any interest to the auction purchaser. He also reviewed that part of his previous order which dealt with the question of poundage holding that one half of the poundage should be paid by the decree-holder to the auction purchaser and that in respect of the other half, he should apply to Government. It is the decree-holder who is the present petitioner. Although he is satisfied with the review in so far as it, frees him from the liability of paying any interest, he holds that the modification in the order in regard to poundage is not justified and should be revised, his point being that as there was no application either by himself or his opponent for any modification of the order in so far as it related to the poundage the Court had no jurisdiction to modify it. It seems to me that this contention must fail inasmuch as rule 8 of Order 47 clearly lays it down that when the Court grants an application for review it may at, once 're-hear the case'. That surely means that it may hear the case in full and deal with every point which it is necessary to consider before passing a fresh order.

2. The respondent in this petition also objects to the order passed upon review for another reason. His ground is that the circumstances did not justify the granting of the application for review. This application was granted, it should now be mentioned, because the Court found on referring to rule 93 of Order 21, that the order to pay interest could be passed only against a person to whom money had been paid. Admittedly, in this case, the money had remained throughout in Court deposit. The first order therefore calling upon the decree-holder to pay interest to the auction purchaser was not justified by the terms of rule 93. Holding, accordingly, that the order disclosed on the face of it, an error of law, the learned Judge granted the review. It is now argued for the respondent that rule 93 is not exhaustive in this respect and that even though under rule 93 there was no power in the Court to pass any order for the payment of interest, such a power is inherent in the Court and can be invoked under the provisions of Section 151. There is no authority in support of this contention, and it is a well-known principle of law that, where special provisions exist in the Code to deal with particular situations, Section 151 cannot be invoked. In my opinion rule 93 of Order 21 deals with the whole question of what is to happen to the money which has been deposited by the auction purchaser when a sale has been set aside, and the fact that rule 93 permits the Court to make a particular order against a party only if that party has received the money is to my mind exhaustive, and means that no order can be passed against him in any other circumstances. I am accordingly of opinion that the learned Subordinate Judge was right when he held that he was entitled to review his previous order under the provisions of Order 47.

3. In the result this civil revision petition must fail and the memorandum of cross-objections also fails. Each is dismissed with costs.


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