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Gyanund Asram Vs. BepIn Mohun Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal734
AppellantGyanund Asram
RespondentBepIn Mohun Sen
Excerpt:
appeal - civil procedure code (act xiv of 1882), sections 629, 586, 588 and 591--order granting a review in a suit of small cause court nature valued at less than rs. 500. - .....the questions raised in applications for review are totally different from those raised in the suit. a review can only be granted on special grounds, and it may well be that, although an appeal is not allowed from the final decree in the suit, an appeal is allowed from an order granting a review which would reopen the case after it had been disposed of. that the provisions of section 629 are not controlled or superseded by section 591 appears from this that, in appealable cases, an appeal is certainly allowed from the order, although the order is not one of those specified in section 588.9. the order appealed against must be set aside; and the case sent back to the district judge in order that he may hear and dispose of the application in the manner directed in chapter xlvii of the.....
Judgment:

Macpherson and Banerjee, JJ.

1. This is an appeal from an order granting a review of a judgment of the Appellate Court under Section 629 of the Code of Civil Procedure.

2. The suit was one of a nature cognizable by a Court of Small Causes, and the value of the subject-matter of it was below Rs. 500. The suit was tried by the Munsif in his ordinary jurisdiction. After the appeal had been disposed of, the defendant applied for a review of the Appellate Court's judgment. This application was made on the 11th of November 1893. Notice issued upon the opposite side, and, after several adjournments, the 16th' March 1894 was fixed for the hearing of the application. On the 10th March the review was allowed and a date fixed for the hearing of the arguments : by which we understand the arguments bearing on the appeal which was to be reheard. Obviously if the case on the 9th was adjourned till the 16th, but was disposed of on the 10th instant without notice to and in the absence of the opposite-party, the provisions of Section 626 of the Code were contravened, because no opportunity was granted to the opposite side to appear.

3. There is an affidavit on the part of the respondent before us that, on the 9th, the Judge made a verbal order postponing the case till the 10th.

4. This affidavit is uncontradicted, and it would seem that the 16th, which was the date recorded, was written either by mistake or in ignorance of the verbal order.

5. But however this may be, the provisions of Section 626 have been clearly contravened in another respect. That section requires that the Judge shall record with his own hands his reasons for granting an application for review. In this case there is no such record, there is only a bare order, without any reasons, that the review is allowed. As the review was applied for on various grounds, such as the discovery of new evidence and the omission of the Court to consider and give due weight to some of the evidence which had been already given it was important for the opposite side to know the exact grounds on which the application was granted.

6. We must hold, therefore, that the order being in contravention of Section 626, cannot stand.

7. A preliminary objection was taken by the respondent that no appeal lies against the order complained of, because Section 586 prohibits a second appeal in the suit; and because, also, the order is not one of those specified in Section 588, and that section and Section 591 prohibit an appeal from any order passed by a Court in the exercise of original or appellate jurisdiction other than those specified. Conceding this, it seems impossible to get over the language of Section 629, which provides that an objection to an order granting an application for review may be made at once by an appeal against the order granting the application or may be taken in any appeal against the final decree or order made in the suit.' Section 623 contemplates applications for review of judgments in suits in which no appeal lies as well as in suits in which an appeal does lie. It may be that Section 629 would not give a right of appeal against the final decree in a suit in which an appeal was expressly prohibited by the other sections of the Code: but the person aggrieved would still have the alternative remedy given by that section of appealing against the order granting the application for review.

8. The questions raised in applications for review are totally different from those raised in the suit. A review can only be granted on special grounds, and it may well be that, although an appeal is not allowed from the final decree in the suit, an appeal is allowed from an order granting a review which would reopen the case after it had been disposed of. That the provisions of Section 629 are not controlled or superseded by Section 591 appears from this that, in appealable cases, an appeal is certainly allowed from the order, although the order is not one of those specified in Section 588.

9. The order appealed against must be set aside; and the case sent back to the District Judge in order that he may hear and dispose of the application in the manner directed in Chapter XLVII of the Code of Civil Procedure.


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