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Nand Kishore Singh Vs. Ram Gulam Sahu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal1037
AppellantNand Kishore Singh
RespondentRam Gulam Sahu
Cases ReferredGooroopersad Khoond v. Juggutchunder
Excerpt:
review - application for leave to appeal to privy council--order rejecting such application, if subject of review--interest subsequent to decree, how far can be allowed by the high court to be calculated--order rejecting application for review by a court other than high court, if appealable--civil procedure code (v of 1908), section 114, orders xlvii and xliii, rule 1(v). - .....experienced and eminent vakils of this court, immediately told us that though the value of the subject matter of an appeal to his majesty in council was upwards of rs. 10,000, still the value of the subject matter of the suit was not rs. 10,000, and consequently he could not support the application. the result was, it was rejected.2. it is now sought to obtain a review of this order under section 114 of the code and order xlvii. it is objected on the part of the respondent that no such application can be made, and for the purposes of supporting that contention our attention has been drawn to a number of decisions in which it has been held that no appeal lies under the letters patent from the orders of a single judge, rejecting an application for leave to appeal to the privy council......
Judgment:

Lawrence H. Jenkins, K.C.I.E. C.J.

1. This is an application to review an order made by us under Order XLV of the Code of Civil Procedure. By that order we rejected an application for leave to appeal to His Majesty in Council, and we did so upon this ground. The learned vakil for the applicant, one of the most experienced and eminent vakils of this Court, immediately told us that though the value of the subject matter of an appeal to His Majesty in Council was upwards of Rs. 10,000, still the value of the subject matter of the suit was not Rs. 10,000, and consequently he could not support the application. The result was, it was rejected.

2. It is now sought to obtain a review of this order under Section 114 of the Code and Order XLVII. It is objected on the part of the respondent that no such application can be made, and for the purposes of supporting that contention our attention has been drawn to a number of decisions in which it has been held that no appeal lies under the Letters Patent from the orders of a single Judge, rejecting an application for leave to appeal to the Privy Council. Mr. Justice Wilson in Lutf Ali Khan v. Asgur Reza(1890) I.L.R. 17 Calc. 455 bases this conclusion on the view that the order was not a judgment within the meaning of the Letters Patent If that be the reason why an appeal does not lie from an order of a single Judge, it affords no answer to an application for review.

3. Section 114 of the Code provides that a party, who is aggrieved by an order from which no appeal has been preferred or from which no appeal is allowed by the Code, may apply for a review of the judgment to the Court, which made the order, and the Court may make such order thereon as it thinks fit. The order of rejection comes within this description, and the application for review is, therefore, within the terms of Section 114. I fail to see how it can be said the order of rejection was not an order of a Civil Court; it was under Order XLV of the Code which is an act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

4. Moreover, I would point out, in support of this that when an application for leave is rejected by a Court other than a High Court, then under1 Order XLIII, Rule 1 (v), an appeal lies from such order. I therefore can see in the Code nothing to support the view that the order of the High Court under Order XLV is not subject to review.

5. The next question is whether the applicant has made out a case for review.

6. It is now contended that the value of the subject matter of the suit in fact was Rs. 10,000 or upwards, and that there is an error apparent on the face of the record. But when the facts come to be investigated, it is conceded that even if interest be calculated not only up to the decree, but even up to the end of the six months allowed for redemption, the sum of Rs. 10,000 is not reached. In this connection I would refer to, the case of Gooroopersad Khoond v. Juggutchunder (1860) 8 Moo. I.A. 166, 169 where it was stated that their Lordships must not, of course, be understood to intimate that the Sudder Courts are to give leave to appeal in cases in which the specified amount of Rs. 10,000 can only be reached by the addition of interest subsequent to the decree. Such cases must, in their Lordships' opinion, rest in, their discretion,' that is, in the discretion of the Judicial Committee. There were, therefore, grounds for the conclusion at which the learned vakil arrived as to the insufficiency of the value of the subject matter of the suit, and it is not made out that there, is an error apparent on the face of the record or any sufficient reason for granting the review. If leave to appeal, is to be obtained, it must, in the circumstances, be obtained from their Lordships of the Privy Council, and not from us;

7. The application must, therefore, be dismissed with costs.

N.R. Chatterjea J.

8. Concurred.


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