1. The father of the four minor petitioners was adjudicated insolvent and the Official Receiver obtained an ex parte order that his debts were binding upon them. The property, including their interest, was sold by the Official Receiver and purchased by respondent 1 who applied for and obtained from the Subordinate Judge, an ex parte order for the delivery of the property. After delivery had been given the minor petitioners through their mother filed an application, so styled, for review of the Subordinate Judge's order, and the learned Subordinate Judge, after framing issues and considering the circumstances dismissed the petition. An appeal was taken from this dismissal to the District Judge who however decided that, since the order was in the nature of a refusal to grant an application for review, it fell under Order 47, Rule 7 and no appeal would lie. This finding of the District Judge has been challenged in this revision petition.
2. It is no doubt true that the petition preferred by the petitioners to the Subordinate Judge was in form an application to review his former order and it quoted Rule 1, Order 47, Civil P.C., as well as Section 151 of the Code, both being attracted by Section 5, Provincial Insolvency Act. But I think we have to look at the general circumstances in which that application came to be made. It may be regarded, I think, from two points of view. In the first place, it was in the nature of an application to set aside an ex parte order, and the question therefore arises whether the review machinery is appropriate to achieve such a purpose. There are some older cases such as Bibi Mutto v. Illahi Begam (1884) 6 All 65 and Ghansham Singh v. Lal Singh (1887) 9 All 61 which hold that the absence of a party owing to failure of notice is a sufficient reason within Order 47, Rule 1. In these cases a review of judgment was given on such a ground. The same opinion was expressed by Kumaraswami Sastri, J., in Virupakshigowd v. Bandappa AIR 1919 Mad 844 the learned Judge holding that the party could resort to either of the two alternative procedures, Order 9, Rule 13 or Order 47, Rule 1. Since those judgments were passed however the Privy Samu Asari v. Anachi Ammal (1884) 6 All 65, directly in point where Ramesam, J, held that such a suit will not be cognizable as a small cause suit and declined to follow Chhedi v. Gulabo (1887) 9 All 61 which latter case was followed in Fika Sahu v. Chirkat Sahu AIR 1919 Mad 844. Although the decision in this Court was that of a single Judge with great respect I agree with it. It was sought to distinguish that case by saying that it was proved that the deceased had no other property and that the learned Judge said:
under the circumstances it is obvious that the plaintiff is suing for the whole of the property of her deceased daughter who died intestate.
3. In this case the plaintiff also sues as the heir of his daughter and so apparently for the whole property, but even if the property sued for is not the whole property, but is only a share of property of the intestate I fail to see how it will not bring the suit under Article 28. Even if the objection had not been taken in the lower Court, Ram Prosad v. Sricharan Mandal (1917) 41 IC 276, which followed Surandranath v. Bangsi Badan (1916) 36 IC 457 and Priyanath Sardar v. Mohendranath Paik : AIR1924Cal536 , are authorities that even when objection is not taken when there is a complete absence of jurisdiction acquiescence of the parties cannot give the Court jurisdiction in the matter. In my opinion the petition must be allowed with costs of both the Courts and the decree set aside. The plaint should be returned by the learned Subordinate Judge, to whom it will be sent by this Court, for delivery to the party to be presented to the proper Court.