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Mejajennessa Bibi Vs. Sheik Didary - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.86
AppellantMejajennessa Bibi
RespondentSheik Didary
Cases ReferredFirozi Begam v. Abdul Latif Khan
Excerpt:
civil procedure code (act v of 1908), section 115, order xli, rule 10, clause (2) - appeal rejected--appeal to high court, whether lies from an order refusing to act aside an order rejecting appeal--revision, whether lies from refusal to review. - .....the appellate court. this security was directed to be furnished by the 30th november 1914. as the learned judge of the court below observes in his order of the 16th march 1915, practically six extensions of the time were given to the appellant to furnish the security required from him. however, the security was not furnished and on the 4th january 1915, the judge passed an order which is in effect an order rejecting the appeal under order xli, rule 10, clause (2), code of civil procedure. then on the 18th february 1915, the appellant presented an application for the restoration of the appeal to the file. that application, the learned pleader who now appears for the appellant argues, is to be treated as an application for review of the preceding order of the 4th january 1915. so far we.....
Judgment:

1. This matter arises out of an appeal which was filed in the lower Appellate Court on the 9th September 1914. On a subsequent date the respondent applied that the appellant should be directed to give security- for costs and, on the 20th November 1914, an order was made requiring the appellant to furnish security for the costs which had been incurred in the first Court and the costs which might be incurred in the Appellate Court. This security was directed to be furnished by the 30th November 1914. As the learned Judge of the Court below observes in his order of the 16th March 1915, practically six extensions of the time were given to the appellant to furnish the security required from him. However, the security was not furnished and on the 4th January 1915, the Judge passed an order which is in effect an order rejecting the appeal under Order XLI, Rule 10, Clause (2), Code of Civil Procedure. Then on the 18th February 1915, the appellant presented an application for the restoration of the appeal to the file. That application, the learned Pleader who now appears for the appellant argues, is to be treated as an application for review of the preceding order of the 4th January 1915. So far we may agree with him. Unfortunately the learned District Judge on the 5th February 1915 without notice to the respondent passed an order restoring the appeal on condition that the appellant deposited the security demanded in cash. The requisite amount was afterwards deposited and on the 13th March, the appeal came on for hearing. On that day the respondent challenged the order of the 5th February on the ground that it had been made without notice to him. The learned Judge held, by the judgment complained of dated the 16th March, that this contention was correct and regard being had to the terms of the first proviso of Rule 4 of Order XLVII, Code of Civil Procedure, we are unable to say that the view taken by the learned Judge was wrong. The position there is that the order of 5th February 1915 is not binding on the respondent. The argument on behalf of the appellant on that state of things comes to this that if the order is to be vacated as an order not binding on the respondent or is to be treated as null and void, he is entitled to a proper order on his application dated the Ist February 1915. He contends that the learned District Judge in the order of the 6th March did not deal with the merits but merely decided that he had no power to review the order of the 4th January 1915 after that order had once been made and that that view was inconsistent with the decision of the Privy Council in the case of Balwant Singh v. Daulat Singh 13 I.A. 57 : 8 A. 315 Reading the order as a whole, however, in does not appear to us that the learned Judge intended to say that he had no power to review an order made under Order XLI, Rule 10, Clause (2), Code of Civil Procedure. In every case of course the power of a Court to review an order depends upon the circumstances of the case; that is to say, the circumstances may be such in a particular case that no application for review can be successfully made. In such a case it is possible for the Judge to say that he has no power to review the order, not because the jurisdiction is lacking but because there is no ground on which an order for review can be properly made. It seems to us that it was in that sense that the learned District Judge referred to his power of review in the present case. The conclusion at which he seems to have arrived is that he could find no good ground for reviewing his order of the 4th January 1915. If that is the conclusion to which the learned District Judge came, it is a sufficient answer to the contention that no order has been passed on the merits of the application of the 1st February 1915. The learned District Judge clearly had that application in his mind when he said that no reasons had been suggested before him for holding his order rejecting the appeal wrong in any way or liable to review. If the application of the 1st February 1915 was not explicitly mentioned, the order made on the 16th March 1915 was in substance an order determining that there was not good ground for acceding to that application. In that view of the matter, it is impossible to us now to make an order in the appellant's favour. The case comes to us in two ways. An appeal was filed on the 16th March 1915 and at the same time a Rule was obtained from this Court upon the respondent to show cause why the order referred to should not be set aside. The appeal is clearly from an order refusing to set aside an order rejecting an appeal under Order XLI, Rule 10, Clause (2), Code of Civil Procedure. That no appeal lies from such an order was decided by a Bench of the Allahabad High Court in the case of Firozi Begam v. Abdul Latif Khan 30 A. 143 : A.W.N. (1908) 53 : 5 A.L.J. 109 : 3. M.L.T. 221. We see no reason to differ from the view there taken and the appeal is accordingly dismissed. As to the Rule, if the order of the 16th March 1915 is, as in our opinion it is, an order determining that in the view of the District Judge there was no ground for a review of the order of the 4th January 1915, it is clearly an order with which this Court ought not to interfere in the exercise of its revisional jurisdiction. The Rule must consequently be discharged. We make no order as to costs either in the appeal or in the Rule.


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