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Wahed Ali Vs. Chand Mia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal94,52Ind.Cas.29
AppellantWahed Ali
RespondentChand Mia
Excerpt:
civil procedure code (act v of 1908), order xliii, rule 1(w), order xlvii, rules 1, 4, 7 - appeal from order granting application for review, when lies--'sufficient cause' within meaning of order xlvii, rule 3, what is--review. - .....this case the review was only sought against defendant no. 1. it could not affect the other defendants against whom the plaintiff did not desire to proceed further. he had his decree against defendants nos. 4 and 5 and he was content with the judgment of the appellate court to have the suit dismissed against defendants nos. 2 and 3. defendants nos. 2 and 3 were, as a matter of fact, parties to the application for review, defendants nos. 4 and 5 were not. we think, therefore, that there was no contravention of rule 4. it was suggested that there was no ground at all for entertaining an application for review in this case, but it cannot be said that the omission of the court and the pleader to notice certain provisions of the code which might govern the case would not be a sufficient.....
Judgment:

1. In this case the suit was brought by the plaintiff to recover some money from defendants Nos. 1 to 5. In the Court of first instance a decree was passed against defendants Nos. 2, 3, 4 and 5 and the suit was dismissed against defendant No. 1. Defendants Nos. 2 and 3 preferred two separate appeals to the Subordinate Judge, who allowed those appeals and dismissed the suit as against them. Defendant No. 1 was a party respondent in both those appeals. The plaintiff applied for a review of judgment as against the defendant No. 1 on the ground that the provisions of Order XLI, Rule 33, Civil Procedure Code, had been overlooked by the Court and the Pleaders at the time of the hearing, and he asked that the appeals might be re-heard against the defendant No. 1, with a view possibly to applying the provisions of that section and granting a decree against defendant No. 1. The Subordinate Judge granted the application for review and against that order the present appeals are preferred.

2. A preliminary objection is taken that no appeal lies and we think that objection must be upheld. Order XLIII, Rule 1(w), permits an appeal from an order under Rule 4 of Order XLVII granting an application for review, but Rule 7 limits the grounds on which objection may be made to such an order. It can he objected to only on the ground that the application was (a) in contravention of the provisions of Rule 4, or (a) after expiration of the period of limitation prescribed therefor and without sufficient cause. It is argued for the defendant No. 1, the appellant before us, that it is in contravention of Rule 4, because it is said that the application was granted without previous notice to all the parties. Rule 4 (a) lays down that no such application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree' or order. In this case the review was only sought against defendant No. 1. It could not affect the other defendants against whom the plaintiff did not desire to proceed further. He had his decree against defendants Nos. 4 and 5 and he was content with the judgment of the Appellate Court to have the suit dismissed against defendants Nos. 2 and 3. Defendants Nos. 2 and 3 were, as a matter of fact, parties to the application for review, defendants Nos. 4 and 5 were not. We think, therefore, that there was no contravention of Rule 4. It was suggested that there was no ground at all for entertaining an application for review in this case, but it cannot be said that the omission of the Court and the Pleader to notice certain provisions of the Code which might govern the case would not be a sufficient reason within the provisions of Rule 1. We think, therefore, that these appeals must, therefore, be dismissed with costs, hearing fee two gold mohurs in each case.


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