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Gobind Proshad Tewary and ors. Vs. Baroda Churn Ghose - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal984
AppellantGobind Proshad Tewary and ors.
RespondentBaroda Churn Ghose
Cases ReferredHar Nandan Sahai v. Behari Sing
Excerpt:
appeal - order granting review of judgment--civil procedure code (act xiv of 1882), section 629. - .....stated in section 629, and the question which was argued before us is, whether it is competent in final appeal to challenge the propriety of an order granting a review on grounds other than those stated in section 629.2. upon this question the case of har nandan sahai v. behari sing (ante, p. 3) was cited before us, and we have come to the conclusion that that case properly interpreted must be held to decide that in general final appeal an order for review cannot be challenged save upon the grounds stated in section 629, and we shall follow that casein deciding the question before us against the appellant and in support of the decision of the lower appellate court.3. in the case of har nandan sahai v. behari sing (ante, p. 3), the bombay decision in the case of the bombay and persia.....
Judgment:

Pigot, J.

1. The only question in this appeal is whether the decree of the Lower Appellate Court must be set aside by reason of the review having been allowed under the circumstances under which it was granted; it was not granted on any of the grounds stated in Section 629, and the question which was argued before us is, whether it is competent in final appeal to challenge the propriety of an order granting a review on grounds other than those stated in Section 629.

2. Upon this question the case of Har Nandan Sahai v. Behari Sing (ante, p. 3) was cited before us, and we have come to the conclusion that that case properly interpreted must be held to decide that in general final appeal an order for review cannot be challenged save upon the grounds stated in Section 629, and we shall follow that casein deciding the question before us against the appellant and in support of the decision of the Lower Appellate Court.

3. In the case of Har Nandan Sahai v. Behari Sing (ante, p. 3), the Bombay decision in the case of the Bombay and Persia Steam Navigation Co. v. S.S. 'Zuari' I.L.R. 12 Bom. 171 was treated as the basis of the decision of this Court. No doubt the Bombay case only decided, so far as appears from the report, that an appeal direct from an order granting a review lies only in the cases set forth in Section 629. That was a case directly under Section 629, but the Judges in the case of Har Nandan Sahai v. Behari Sing declared that the Bombay case was directly in point in the case before them. Now, in the Calcutta case, the appeal was not an appeal direct against the order; the order was contested in final appeal upon grounds other than those set forth in Section 629; the proceedings after review were set aside by the District Judge on those grounds; and the case was decided by him on the evidence existing on the record previous to the granting of the plaintiff's application for a review. This is just what we are asked on grounds other than those specified in Section 629 to order here. This Court held that the District Judge was wrong, set aside his decision, and sent back the case to him to decide the other questions arising in the appeal, that is to decide the case upon the evidence taken after the order of review (see page 4, 'line 7). The case is therefore a decision that in final appeal the order for review can only be challenged upon the grounds contained in Section 629. That is, as urged by the learned pleader for the respondents, that the words in Section 629 'or may be taken in any appeal against the final decree or order made in the suit' restrict the grounds of appeal against the order in final appeal to the grounds stated in the section. This no doubt greatly limits the checks and restrictions on the powers of the lower Courts in granting reviews. But just as in the case of orders setting aside ex parte decrees, it may well be that the Code does not see to supervise with very jealous scrutiny the exercise of powers which after all tend to a complete enquiry and consideration of the case upon the merits.

4. Therefore construing the case of Har Nandan Sahai v. Behari Sing in the manner we have done, and following it as we think we ought to do, we must decide this case in favour of the respondents and dismiss the appeal with costs.


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