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Surjya NaraIn Chowdhury Vs. Kunja Behary Mal and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal66,66Ind.Cas.909
AppellantSurjya NaraIn Chowdhury
RespondentKunja Behary Mal and ;kailas Mandal
Excerpt:
civil procedure code (act v of 1908), order xliii, rule 1 (w), order xlvii, rule 7 - order granting review--appeal--jurisdiction of appellate court. - .....no. 1, the mortgagor, and defendant no. 2 a subsequent transferee who is the petitioner in this rule. kanta admittedly died on 8th february 1917. on 18th november 1918 kanta mal's sons applied for a final decree in that mortgage suit, on 21st december 1918 they applied for substitution of their names as plaintiffs in the place of kanta mal. this application was allowed without notice to either defendant and on 25th january 1919 a final mortgage-decree was passed. on 24th february 1919 the defendant no, 2 applied for a review of that mortgage decree and that application was allowed. then the sons of kanta mal appealed from that order granting the review. that appeal was successful and the present rule is directed against the order passed in that appeal. we do not thick it necessary to.....
Judgment:

1. Rule No. 664 of 1920. This rule is directed against an order of District Judge of Bankura setting aside an order of the Munsif of Khatra granting an application for review. One Kanta Mal obtained a preliminary mortgage decree on 14th June 1916 against defendant No. 1, the mortgagor, and defendant No. 2 a subsequent transferee who is the petitioner in this Rule. Kanta admittedly died on 8th February 1917. On 18th November 1918 Kanta Mal's sons applied for a final decree in that mortgage suit, On 21st December 1918 they applied for substitution of their names as plaintiffs in the place of Kanta Mal. This application was allowed without notice to either defendant and on 25th January 1919 a final mortgage-decree was passed. On 24th February 1919 the defendant No, 2 applied for a review of that mortgage decree and that application was allowed. Then the sons of Kanta Mal appealed from that order granting the review. That appeal was successful and the present rule is directed against the order passed in that appeal. We do not thick it necessary to go into the merits of the case. The only question that arises in this rule is whether the order of the District Judge was made with or without jurisdiction, Although Order XLIII, Rule 1 (w) allows an appeal against an order granting a review, that clause must be read with Rule 7 of Order XLVII by which the grounds, on whish an order granting a review can be set aside on appeal, are limited. We hold that unless, the fasts of the case were sufficient to bring the grounds of appeal within those limited grounds, the lower Appellate Court had no jurisdiction to sat aside the order of review on appeal, The learned District Judge has held that Clause (c) of that rule is applicable and the order of review must be set aside on the ground that the application to the Munsif for review was made after the expiration of the period of limitation specified therefore. But, as already stated, the application for review was made, within one month of the order sought to be reviewed. To meet this objection the learned District Judge states that although the order sought to be reviewed in the order granting the final decree, it is really an application to review the order allowing substitution of the sons of the plaintiff. We think that when, on the face of it, the application for review was clearly in time, the lower Appellate. Court had no jurisdiction to treat the application as if it were for a review, of the earlier order. By so doing it acted without jurisdiction and its order passed on appeal is illegal. We accordingly make this rule absolute, set aside the order complained of and restore the order of the Munsif dated 21st February 1920 allowing the application for review the opposite party will pay the petitioner his costs, the hearing fee being assessed at two gold mohurs.

2. Rule No. 644 A of 1920. The learned Vakil for the petitioner concedes that he can take no objection to the order against which the rule is directed, that is to say, the order dismissing the appeal against the order of abatement passed by the Munsif on 13th 1920. All that is necessary to state is that, how that the Munsif's order granting the review is restored, the order passed on 13th March 1920 will stand good. In this rule we make no order as to costs.


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