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K.A. Muhammad Sultan Sahib Vs. Nagoji Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad828
AppellantK.A. Muhammad Sultan Sahib
RespondentNagoji Rao
Cases ReferredChhajju Ram v. Neki A.I.R.
Excerpt:
- - 3. i am however not satisfied that in circumstances of this kind a review would lie. the learned judges who came to the conclusion that the court was entitled to take this course have not explained their reasons for the view, nor have they considered the matter with reference to the terms of order 47, rule 1. i do not think that it can, with any success, be contended that the circumstances satisfy any part of the specific terms of that rule, they do not include the discovery of new and important matter, or any mistake or error apparent on the face of the record; 112. it may be that the court in the present instance acted without jurisdiction, but the obvious remedy which the petitioner had in his hands was to appeal against the order, and i should only in very rare and unusual..........in the record which justifies me in presuming that, notwithstanding the absence of any formal notice issued to him, the surety did in fact have notice of the course which the court proposed to take. i think accordingly that in refusing to review the order of his predecessor on the ground that notice in fact was issued, the learned district munsif has committed an error, and if he had himself any discretion to review that order exercise of that discretion has, it may be said, been vitiated by that error.3. i am however not satisfied that in circumstances of this kind a review would lie. a calcutta case has been brought to my attention, bash behari mandal v. hemanta kumar ghose : air1925cal1023 , in which it was held that a court has jurisdiction to review its order passed ex parte.....
Judgment:

Curgenven, J.

1. I am asked to revise the order of the District Munsif of Tiruppur refusing to review an order passed by his predecessor under Section 115, Civil P. C. The petitioner stood surety for the defendant, who was arrested before judgment, and after a decree was passed against his principal a notice was served on him on 12th February 1928 to produce the judgment-debtor on the following day, the 13th. He was unable to comply with this demand, but he himself appeared and asked for time, which was refused. The Court then reserved its order against the surety under Section 145 and on the following day directed his arrest under that provision. The order was in fact stayed, and on the 20th of the same month the surety produced the judgment-debtor. He then applied, as I have said, for a review of the order directing execution to issue against him. The learned District Munsif who has declined to grant the review has, it seems to me, taken an erroneous view of the requirements of Section 145. He appears to think that so long as notice is issued 'to a surety to produce his judgment-debtor it is unnecessary, when he fails to do so, to issue a further notice to him to show cause why execution of the decree should not issue against him. It is of course no answer to the requirements of the Civil Procedure Code to say that the execution application filed by the decree-holder asked that the surety might be directed to produce the judgment-debtor and that in default he might be arrested. We have to look to the terms of the notice that was in fact issued to the surety, and all that the notice directs is that he should produce the judgment-debtor on the 13th February. A similar case was disposed of in Tan Kin Shan v. U Che Si A.I.R.1925 Rang.185. There too notice was issued to the sureties of a certain judgment-debtor to produce him in Court on a certain date, and when that date arrived, there being no appearance for the sureties or the judgment-debtor, the Court at once passed orders for the issue of a warrant of attachment of the property tendered as security by the surety.

2. The learned Judges held that inasmuch as no notice of any kind was issued under the proviso to Section 145, Civil P. C, which requires that the surety should be called upon to show cause against the issue of execution, the order passed was ultra vires. I can find nothing in the record which justifies me in presuming that, notwithstanding the absence of any formal notice issued to him, the surety did in fact have notice of the course which the Court proposed to take. I think accordingly that in refusing to review the order of his predecessor on the ground that notice in fact was issued, the learned District Munsif has committed an error, and if he had himself any discretion to review that order exercise of that discretion has, it may be said, been vitiated by that error.

3. I am however not satisfied that in circumstances of this kind a review would lie. A Calcutta case has been brought to my attention, Bash Behari Mandal v. Hemanta Kumar Ghose : AIR1925Cal1023 , in which it was held that a Court has jurisdiction to review its order passed ex parte for issue of a writ or delivery of possession. It appears that on an application after the decree was passed an order for delivery was issued by the Court, and immediately afterwards, before that order could be put into execution or had reached the opposite party, the peon who carried it was recalled and other orders were passed. The learned Judges who came to the conclusion that the Court was entitled to take this course have not explained their reasons for the view, nor have they considered the matter with reference to the terms of Order 47, Rule 1. I do not think that it can, with any success, be contended that the circumstances satisfy any part of the specific terms of that rule, they do not include the discovery of new and important matter, or any mistake or error apparent on the face of the record; nor am I prepared to hold that the words 'for any other sufficient reason' can be availed of in view of the Privy Council decision in Chhajju Ram v. Neki A.I.R.1922P.C.112. It may be that the Court in the present instance acted without jurisdiction, but the obvious remedy which the petitioner had in his hands was to appeal against the order, and I should only in very rare and unusual cases be disposed to allow any other kind of remedy such as review and revision to a petitioner who has failed to adopt that course. In these circumstances I think that there are no sufficient grounds to interfere with the order of the learned District Munsif, based though it may be upon an erroneous view of the facts and the law applying to them. The Civil Revision Petition is dismissed with costs.


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