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(Nekkanti) Seeramma Vs. (Nekkanti) Seshamma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad217; 145Ind.Cas.766
Appellant(Nekkanti) Seeramma
Respondent(Nekkanti) Seshamma
Cases ReferredAhid Khondkar v. Mahendra Lal
Excerpt:
- - as already observed the learned district munsif excused the delay and also expressed himself satisfied that the respondent had made out a case for granting a review. now, looking at the language of rule 7(1) i think that the objection raised by the petitioner being that the application for review was made after the expiration of the period of limitation and with inexcusable delay, the rule clearly gives him the remedy of appeal. mahendra lal (1915) 42 cal 880. the respondent supported her application with an affidavit which satisfied this requirement as to 'strict proof' and was accepted by the munsif......of lawyers and in procuring the necessary funds, filed an application for review under c. 47, rule 1, civil p.c. this was on 9th march 1928. the ground on which the review was sought was that the discovery of the right survey number of the property charged with her maintenance was the discovery of new and important matter which was excusably not within her knowledge at the time when the decree was made. the learned district munsif granted the application. it was resisted by the petitioner here on the ground that the application was long out of time and that no sufficient reason had been shown for excusing the delay under section 5, lim. act, and also on the ground that the correct description of the property could have been discovered by plaintiff with the exercise of due diligence......
Judgment:

Cornish, J.

1. The petitioner here was defendant in a suit for maintenance brought by the respondent. The suit was decreed, and the maintenance was made a charge on a particular item of property. The date of the decree was 22nd August 1927. The plaintiff afterwards discovered that this item of property had been misdescribed by her in the schedule to her plaint, and applied on 16th November 1927 to have the mistake rectified in an application under Section 152, Civil P.C. This application was dismissed, the Court suggesting that the proper remedy might be an application for review. The plaintiff then, after a considerable delay, which has been excused by the learned District Munsif on the ground that the time taken up by the plaintiff in obtaining the advice of lawyers and in procuring the necessary funds, filed an application for review under C. 47, Rule 1, Civil P.C. This was on 9th March 1928. The ground on which the review was sought was that the discovery of the right survey number of the property charged with her maintenance was the discovery of new and important matter which was excusably not within her knowledge at the time when the decree was made. The learned District Munsif granted the application. It was resisted by the petitioner here on the ground that the application was long out of time and that no sufficient reason had been shown for excusing the delay under Section 5, Lim. Act, and also on the ground that the correct description of the property could have been discovered by plaintiff with the exercise of due diligence. As already observed the learned District Munsif excused the delay and also expressed himself satisfied that the respondent had made out a case for granting a review.

2. A preliminary objection to the maintainability of the revision petition is made by the respondent, the argument being that the petitioner has a remedy by way of appeal against the Munsif's order. Order 43, Rule 1(w), Civil P. C, gives a right of appeal against an order under Rule 4, Order 47, Civil P. C granting an application for review. Order 47, Rule 7, Civil P. C, gives a right of objection which may be taken by an appeal against an order granting an application to review, on the ground that the application was (a) in contravention of the provisions of Rule 2(b) or in contravention of the provisions of Rule 4(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. Now, looking at the language of Rule 7(1) I think that the objection raised by the petitioner being that the application for review was made after the expiration of the period of limitation and with inexcusable delay, the rule clearly gives him the remedy of appeal. With regard to Rule 7(b) it would be a contravention of Rule 4 to grant an application for review on the discovery of new matter alleged not to have been within the applicant's knowledge without strict proof of such allegation. 'Strict proof' means formal proof: Ahid Khondkar v. Mahendra Lal (1915) 42 Cal 880. The respondent supported her application with an affidavit which satisfied this requirement as to 'strict proof' and was accepted by the Munsif. In my opinion this is a case where the remedy of an appeal was open to the petitioner and consequently this revision petition should not be entertained. The petition is dismissed with costs.


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