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Radha Krishna Das Vs. Beni Madhab Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal552
AppellantRadha Krishna Das
RespondentBeni Madhab Das and ors.
Cases ReferredGunganarain Roy v. Gonomonee
Excerpt:
- .....it has been contended that these words suggest that if there has been only an order granting a review, an appeal from that order would be sufficient and if successful, the result of that appeal would restore the decree or order which had been ordered to be varied by the review; but if a decree or order has been made in accordance with the review that is granted, then it would be necessary for the aggrieved party to prefer another appeal from the said decree or order and that even if the appeal from order granting the review be successful, the result of that would not affect the order or decree that may have been subsequently made. it seems to us that this contention cannot be allowed to prevail. the provision to which we have referred first came into existence under the code of 1877......
Judgment:

1. This is an appeal from an order passed by the Subordinate Judge, Second Court of Midnapur, allowing an application for review. The facts necessary to be stated for the purpose of this appeal are the following: There was a suit for partition which the appellant had instituted as plaintiff against three persons as defendants, No, 1 being one Beni Madhab Das, No. 2 one Basanta Kumar Das and No. 3 one Hemanta Kumar Das. After a preliminary decree was passed in the suit a Commissioner was appointed to make the necessary investigation. In the course of that investigation a solenama was filed before the commissioner. The Commissioner made the partition in accordance with the terms of the solenama and submitted his report. When the report was pending consideration, the plaintiff filed a petition of objection regarding the solenama. The Subordinate Judge sent for the pleader for the defendants, but the latter did not appear. It may be stated here that the three defendants, at that stage of the suit, were being represented by a pleader named Babu Durga Charan Banerji. The case was adjourned to 21st May 1928. On 19th May 1928, defendant 2, Basanta, preferred another objection. Eventually, when the matter was taken up, the plaintiff was ready, but the defendants were absent. This happened on two occasions. On the latter occasion the Subordinate Judge examined the plaintiff and a witness on his behalf and ordered the plaintiff to deposit certain costs in order that the matter might be referred back to the Commissioner. On 29th September 1928, a definite order was made by the Subordinate Judge sending the case back to the Commissioner for reconsideration of his report. Before the Commissioner, as far as may be gathered from the order sheet, none of the defendants appeared and ultimately the Commissioner made certain alterations in the report which he had previously made and resubmitted the same with the result that, on 25th January 1929, the Subordinate Judge acting upon the amended report made a final decree in the suit. On 26th April 1929, this final decree was drawn up and signed by the Subordinate-Judge.

2. On 4th May 1929, two applications for review were filed, one on behalf of defendants 1 and 3 and the other on behalf of defendant 2. These applications were dealt with by an order dated 20th November 1929, by which the learned Subordinate Judge allowed the application of defendants 1 and 3 for review and dismissed the application of defendant 2 for that purpose and made certain alterations in the decree which had previously been made by the Court. From this order the present appeal has been preferred on behalf of the plaintiff. The alteration that was made was only with regard to one particular lot of properties, viz., lot No. 64, which on the previous occasion the Commissioner had allotted in a particular way; but on the second occasion-being of opinion that there were tenanted, lands therein, he had made certain modifications in the allotment. The objections which were urged in the applications for review were several in number, but it was only one objection with regard to lot No. 64 that was allowed by the Subordinate Judge and the procedure which the Subordinate Judge adopted was not merely to make an order granting the review, but to review the decision complained of then and there. In other words he made one order at one and the same-time by which he not only granted the review, but also dealt with the case itself and altered the decree.

3. In those circumstances, in the appeal which has been preferred before us, two. questions have arisen. Firstly, the question as to whether the decree itself having been altered it is open to the appellant to prefer an appeal from the order granting the review and not to take any steps as regards the decree itself and in the appeal which he has preferred, to contend that the order granting the review should be set aside and further that along with it the alterations made in the decree-should be cancelled leaving the original, decree to stand as it was before the review-was allowed.

4. The other question is the question whether the Subordinate Judge was right in, granting the review when, as a matter of fact, the application for the purpose was filed long after three months from the date on which the final decree was made. As regards the first question which relates really to the maintainability of the appeal, the objection is based upon the wording of the last clause in Sub-rule (1), Rule 7, Order 47 of the Code. The words are as follows:

Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

4. It has been contended that these words suggest that if there has been only an order granting a review, an appeal from that order would be sufficient and if successful, the result of that appeal would restore the decree or order which had been ordered to be varied by the review; but if a decree or order has been made in accordance with the review that is granted, then it would be necessary for the aggrieved party to prefer another appeal from the said decree or order and that even if the appeal from order granting the review be successful, the result of that would not affect the order or decree that may have been subsequently made. It seems to us that this contention cannot be allowed to prevail. The provision to which we have referred first came into existence under the Code of 1877. Before that in the Code of 1859 there was no such provision. But in a long series of cases before the Code of 1877 came into being it had been held that if the order granting a review is set aside, all subsequent proceedings taken under that order are also to be regarded as having been set aside. Reference in this connexion may be made to a decision of the Judicial Committee in the case of Luchmun Singh v. Tirbani Buksh [1874] 2 I.A. 58. In that case Sir Barnes Peacock delivering the judgment of their Lordships referred to an earlier decision of the Judicial Committee in the case of Maharajah Moheshur Sing v. The Bengal Government [1857] 7 M.I.A. 283 which had been decided under the Regulations and also a decision of this Court in the case of Gunganarain Roy v. Gonomonee [1867] 8 W.R. 184 decided under Act 8 of 1859 and with reference to the latter case, the marginal note in which was quoted by their Lordships it wa9 said that their Lordships approved of that decision. The decision so approved, was that the order of the Court below attempting review of judgment after the expiration of 90 days from the date of the decree was illegal and was set aside with the subsequent proceedings thereon. This practice therefore must have been in vogue, at any rate, down to 1877, so long as Act 8 of 1859 was in force. Our attention has not been drawn to any authority decided either under the Code of 1877 or the Code of 1882, or the present Code, in which nothing has been said suggesting that the practice should be departed from. It is only reasonable to think that if it was intended by the legislature by the introduction of the clause to which we have referred, to insist upon a separate appeal being preferred from the final order or decree after the previous one was actually reviewed, then the matter would have been expressly stated or provided for. That not having been done, we are of opinion that if the appellant succeeds in the appeal which he has preferred all subsequent proceedings under the order appealed from including the final decree that has, been made, will necessarily fall through

5. Turning now to the other question which relates to the merits of the appeal itself, the position seems to be this: that the application for review was admittedly made beyond 90 days from the date on which the decree was passed and the applicants wanted to get over the bar of limitation by alleging that they were not aware of the proceedings that took place since the submission of the first report by the Commissioner, that is to say they had no knowledge whatsoever of the order by which the case was sent back to the Commissioner for reconsideration or the subsequent report which the Commissioner made or the decree that was subsequently made. The Subordinate Judge held that so far as defendant 2 was concerned, that allegation of his could not be believed. As regards defendants 1 and 3 he has chosen to rely upon the evidence which defendant 1 himself and one Sitanath, a witness of his, gave and by which defendant 1 attempted to make out that he had no knowledge of the proceedings that took place before the 13th or 14th of Baisakh. We have examined that evidence and we must say that that evidence is of a very unsatisfactory nature. The Subordinate Judge in his order observed thus:

There is nothing to show that the commissioner informed the parties before executing the commission for the second time. There is simply an observation in the report to the effect that ha informed the pleaders but there is nothing to show that the petitioners got actual notice of the matter.

6. Now this we find, is not a strictly accurate statement of fact. The commissioner in his report first of all referred to the fact that the Subordinate Judge himself had directed him to serve a notice informing the defendants to appear before him at a certain date. He then says that he accordingly served a notice on the pleaders of the parties informing them to direct their clients to appear before him on the morning of 27th October 1928, which was the date which he had fixed for re-adjustment of the partition. He then says that on the morning of 27th October 1928, the plaintiffs appeared, and although he waited for the defendants, the defendants did not turn up. There is a positive statement therefore that notice issued by the commissioner was given to the pleaders to direct their clients to appear and that this was done by the commissioner in pursuance of an express order which the Subordinate Judge had made. Then again, towards the and of the report, the commissioner said this:

I herewith file the copy of the order of the Court and the notice served on the pleaders.

7. There could not possibly have been a mistake on the part of the commissioner with regard to a matter of this description. It is quite true that the notice is not to be found on the record; but it has been brought to our notice that a part of the records has not been sent up to this Court. In the face of this clear statement of fact contained in the commissioner's report, it is difficult to see how the Subordinate Judge could take it that there was nothing to support it. As regards the positive evidence which the defendants gave on this point it appears to us that the defendants' case now is that they are being represented separately by separate pleaders. Defendant 1 says:

Atul Babu is Basanta's pleader. Abinash Babu is our pleader. We are all separate.

8. But, as already stated, Babu Durga Charan Banerji had filed a joint vakalatnama executed by all of them. Defendant 1, in order to get over the difficulty says:

I never inquired anything of my pleader Durga Babu.

9. If notice was given by the commissioner to this pleader, as we hold it was the defendants must be fixed with it. The witness Sitanath gives the story as to the circumstances under which he came to meet Benimadhab, Hemanta and Basanta and how he communicated the information about the decree to them. We are not prepared to believe the story given by this witness. We are of opinion that the defendants, if there was any duty cast upon them to make out a case under Section 5, Lim. Act, have hopelessly failed to discharge their duty. We are of opinion that the Subordinate Judge was entirely wrong in supposing that the application for review made beyond 90 days in the circumstances in which it, was made should be allowed.

10. For these reasons we are of opinion that this appeal should be allowed. We accordingly set aside the order complained of and also all subsequent proceedings taken thereunder and restore the decree which was previously passed in this case. There will be no order as to costs. The application is dismissed.


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