1. This is a petition for the revision of a judgment of the Subordinate Judge of Chicacole by which he set aside an order made by the District Munsiff of Parvatipur reviewing a previous order of his made in E.A. No. 690 of 1944, in O.S. No. 574 of 1918 by which he dismissed that application on the ground that it was barred by limitation. The petitioner filed a decree in this suit (O.S. No. 574 of 1918), and in execution of it brought the property to sale in E.P. No. 9 of 1939. The sale was confirmed on the 18th of April, 1940, and in E.A. No. 656 of 1941. the petitioner applied for delivery of the property. An order for delivery was made, and according to the record, delivery was actually effected on the 25th of July, 1941. Thereafter the petitioner filed another application, E.A. No. 690 of 1944, praying again for the delivery of the property. This petition was dismissed on the ground that it was barred by limitation by reason of the fact that it was filed more than three years after the confirmation of the sale, and it is not denied that the application fell to be dismissed for this reason. The application out of which this civil revision petition arises, E.A. No. 1438 of 1944, was then made for a review of the order in E.A. No. 690 of 1944 on the ground that the application on which that order had been passed was unnecessary because delivery had actually been effected in E.A. No. 656 of 1941 on the 25th of July, 1941, and it was prayed that the application should be dismissed not on the ground that it was barred by limitation but on the ground that it was unnecessary in view of the fact that delivery had already been effected. The District Munsiff, as already stated, reviewed his previous order, but the learned Subordinate Judge allowed the appeal to him, and restored the order passed in E.A. No. 690 of 1944 dis-missing that application on the ground that it was barred by limitation.
2. On merits there can be no question that the learned Subordinate Judge was right and that the application for review should never have been allowed. If the property was actually delivered to the petitioner on the 25th of July, 1941, and he remained in possession of it, no object could be served by having the order, dismissing E.A. No. 690 of 1944 on the ground that it was barred by limitation, set aside. If the petitioner had taken delivery and was in possession, his application, E.A. No. 690 of 1944, was no doubt otiose even if in time; but the order dismissing it could not affect him adversely. Moreover, it was a correct order in the circumstances, and there was accordingly no ground for reviewing it. It is argued, however, by learned Counsel for the petitioner that it was not open to the learned Subordinate Judge to reverse the decision of the District Munsiff on merits and that, in fact, no appeal from the decision of the District Munsiff lay. Order 47, Rule 7 of the Civil Procedure Code provides that:
An order of the Court rejecting the application (i.e., for review) shall not be appealable; but an order granting an application may be objected to on the ground that the order was
(a) in contravention of the provisions of Rule 2,
(b) in contravention of the provisions of Rule 4, or
(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause.
There is no question in the present case of the order made by the District Munsiff contravening the provisions of Rule 2 or that the application was made after the expiration of the period of limitation prescribed. The question is whether the order was in contravention of the provisions of Rule 4. Order 47, Rule 4, Sub-rule (2) provides that:
Where the Court is of opinion that the application for review should be granted, it shall grant the same; provided that--
(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.
In the present case review was prayed for on the ground that when the application for delivery (E.A. No. 690 of 1944) was made it was not within the knowledge of the petitioner that delivery had already been effected on the 25th of July, 1941. The application was supported by an affidavit and the respondent by a counter-affidavit denied the truth of the petitioner's affidavit. The learned Subordinate Judge after considering the facts and the circumstances of the case did not believe that the application for review was made in good faith or that the petitioner when he filed E.A. No. 690 of 1944 was unaware of the fact that delivery had already been ordered and recorded in E.A. No. 656 of 1941.
3. Learned Counsel for the petitioner contends that the lower appellate Court was not competent to consider the sufficiency of the proof that when E. A.No. 690 of 1944 was filed the order passed on E.A. No. 656 of 1941 was not within the knowledge of the petitioner. The words 'strict proof' in Order 47, Rule 4, proviso (b) to Sub-rule (2), it is argued, mean only formal proof; the sufficiency of which is a question for the Court which hears the review petition, the appellate Court being concerned only with the question whether formal proof in accordance with law had been adduced. For the view propounded, learned Counsel relies on the decision of the Calcutta High Court in Ahid Khondkar v. Mahendra Lal De I.L.R. (1915) Cal. 830, a dcision which, as he points out, has been followed by the Bombay High Court and by single Judges of this Court in Seeramma v. Seshamma A.I.R. 1933 Mad. 317 and Muthuswami Naicker v. Chidambaram Chettiar A.I.R. 1939 Mad. 289 : 49 L.W. 430. In Ahid Khondkar v. Mahendra Lal De I.L.R. (1915) Cal. 830, Jenkins, C.J., said:
The word 'proof' ordinarily has one of two meanings; either the conviction of the judicial mind on a certain fact, or the means which may help towards arriving at that conviction. The use of word ' strict' seems to me to point to the second of these two meanings, and the strict proof, in my opinion, means anything which may serve directly or indirectly to convince a Court, and has been brought before the Court in legal form and in compliance with the requirements of the law of evidence. It is the formality which is prescribed and not the result that is described.
Woodroffe, J., said:
This rule [Clause (b) of Sub-section 1, Rule 7 of Order 47] does not, I think, refer to the weight or sufficiency of the evidence. If the legal formalities are observed, it is no objection that the probative force of evidence legally taken appears to be different to the appellate Court from what it appeared to the Court granting review...' Strict proof, ' in my opinion, means proof according to the formalities of law. It does not refer to sufficiency of proof in securing a particular conviction.
According to this decision, therefore, the duty of the appellate Court is to ascertain whether there has been proof according to the formalities of law and not whether the proof convinces it that the new matter or evidence was not within the knowledge of the applicant and could not be adduced by him when the decree or order was passed or made. The question of the sufficiency of the proof is a question solely for the Court of first instance. My attention has been drawn to a decision of Burn, J., reported in Ahmed Khan v. Venkatachalamayya : AIR1942Mad511 in which he dissented from the decision of the Calcutta High Court cited above and the decisions of the two single Judges of this Court which followed that decision. Burn, J., was of the opinion that strict proof means proof which is sufficient to convince the Court of the truth of the allegation made and that it is open to an appellate Court to go into the question of the sufficiency of the proof accepted by the lower Court. In view of the preponderance of authority on the other side I do not think it is open to me to follow this decision of Burn, J. In the present case, however, even if the meaning attached to ' strict proof' in Ahid Khondkar v. Mahendra Lal De I.L.R. (1915) Cal. 830 is accepted, it seems to me that the order of the District Munsiff was in contravention of the provisions of Rule 4 and that for that reason the lower appellate Court was right in setting the order aside even if it was not right in the view that it was open to it to go into the merits of the case and decide the appeal on the ground that on merits the application should have been dismissed.
4. Rule 1 of Order 47 gives as a ground for an application for review of judgment by an aggrieved person the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. The proviso to Sub-rule 2 of Rule 4 of Order 47 makes no mention of the exercise of due diligence, but it is clear that the words ' was not within his knowledge or could not be adduced by him when the decree or order was passed or made ' are implicitly qualified by the words ' after the exercise of due diligence '. In the affidavit filed by the petitioner there is no attempt at all to show that at the time when he filed E.A. No. 690 of 1944, he was unaware of the fact that the property had already been delivered to him in spite of the exercise of due diligence on his part. On the contrary, the reason given for the surprising ignorance of the previous delivery of the property is that after the delivery there had been some changes in the office staff. Moreover, not only is no adequate reason for the want of know-ledge of the previous delivery given in the affidavit, but the question of the exer-cise of due diligence or want of knowledge by the petitioner was not considered at all by the District Munsiflf. Accepting the view that strict proof means not sufficiency of proof but the formalities of proof in accordance with law it seems to me impossible to say that those formalities have been complied with by an affidavit which does no more than baldly state that something was not known to the petitioner at the date when the order was made in respect of which the review petition had been filed without offering any adequate explanation of his ignorance of what, on the face of it, should have been perfectly well known to him. In my opinion, in the present case the affidavit which was the only evidence adduced by the petitioner does not amount to strict proof of the allegation that the fact of pre-vious delivery was not within his knowledge at the time when the order in E.A. No. 690 of 1944 was passed. It is plain that with the exercise of reasonable diligence the evidence with regard to the fact that delivery had already been effected could have been adduced by him in the course of the hearing of E.A. No. 690 of 1944. In that view, the order made by the District Munsiff of Parvatipur reviewing his previous order was in contravention of the provisions of Rule 4 so that the judgment of the Subordinate Judge setting aside that order was correct, although not altogether for the reasons given by him.
5. This petition is dismissed with costs.