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Gobinda Ram Mondal Vs. Bholanath Bhatta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal432
AppellantGobinda Ram Mondal
RespondentBholanath Bhatta
Cases ReferredVencama Shetty v. Pamoo Shetty
Excerpt:
review - second application for review--'final'--civil procedure code (act viii of 1859), section 378--civil procedure code (act xiv of 1882), sections 623, 629. - .....procedure, the corresponding section to section 629 of the present code. in showing cause dr. rash behari ghose has urged that the reasons which led the judges who were in a majority in the full bench case to put the interpretation they did upon the word 'final' do not operate for giving the word the same meaning now, because section 629 of the present code is drawn in an entirely different manner from section 378 of the old code, and has created a considerable alteration in the law. dr. rash behari ghose further urges that the last paragraph of section 629 was really introduced to meet the point which has now arisen; he argues that the words 'no application to review an order passed on review or on an application for a review shall be entertained' are tantamount to saying, ' no.....
Judgment:

1. The rule has been argued before us to-day, Dr. Rash Behari Ghose showing cause against it, and Baboo Uma Kali Mookerjee appearing in support of it. In support of the rule reliance has been placed upon a Full Bench decision in the case of Nasiruddin Khan v. Indronarayan Chowdhry B.L.R. Sup. Vol. 367. That was a decision upon Section 378 of the old Code of Civil Procedure, the corresponding section to Section 629 of the present Code. In showing cause Dr. Rash Behari Ghose has urged that the reasons which led the Judges who were in a majority in the Full Bench case to put the interpretation they did upon the word 'final' do not operate for giving the word the same meaning now, because Section 629 of the present Code is drawn in an entirely different manner from Section 378 of the old Code, and has created a considerable alteration in the law. Dr. Rash Behari Ghose further urges that the last paragraph of Section 629 was really introduced to meet the point which has now arisen; he argues that the words 'no application to review an order passed on review or on an application for a review shall be entertained' are tantamount to saying, ' No second application for review shall be made.' The learned Vakil's third argument is based upon the use of the Article' a ' before the words 'review of judgment' in Section 623, which is the first section of the present Code which deals with reviews of judgments. Dr. Rash Behari Ghose says that 'an' application for a review means only one application for review, not more than one; and be refers to the case of Vencama Shetty v. Pamoo Shetty 5 M.H.C. 323.

2. We have considered these arguments and the case? cited, and are of opinion that the word 'final' in Section 629 bears the same meaning, and ought to have the same construction put upon it, as the word 'final' in Section 378 of the old Coda. We are also of opinion that we must gather the indention of the Legislature from the words they have used. It is impossible to say what was passing in their minds. It seems to us that if they intended to prohibit a second application for review they would have, and could have, said so to precise words. They would have said, 'No second application for a review shall be entertained.' We do not think that the words 'no application to review an order passed on review or on an application for a review shall be entertained' are wide enough to bar a person in the position of the present defendant from making a second application for a review.

3. It is to be noted further that this is a Procedure Code, and the widest possible construction should be put upon Codes of Procedure as distinguished from substantive law, It is also to be observed that this is not an application to review an order passed on review, or to review an order passed on an application for a review. The defendant's case is that the first application for a review was properly rejected. He does not ask to review [436] that order. He asks simply to make a second application to have the original judgment reviewed upon new materials.

4. Under these circumstances we think that the application is one which ought to be entertained.

5. The rule will be made absolute with costs.


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