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Aditya Kumar Bhattachrjee Vs. Abinash Chandra Mukhopadhya and ors. - Court Judgment

LegalCrystal Citation
Subject Limitation; Civil
CourtKolkata
Decided On
Reported inAIR1931Cal323
AppellantAditya Kumar Bhattachrjee
RespondentAbinash Chandra Mukhopadhya and ors.
Cases ReferredVadilal v. Ful Chand.
Excerpt:
- .....heard evidently in the presence of both parties on 4th may 1928. in the judgment which the learned judge passed on that day he observed that the chief ground on. which review was sought was with reference to the fact of a certain petition filed before the revenue court and for permission to file certain documents-which were not produced at the trial. the learned judge went into the matter and considered all the points raised before him on review and passed the final order in these words:the application is therefore rejected so far as this ground is concerned. the second ground urged in the application for review is. that by my judgment i have directed the applicant to pay rs. 100 to the plaintiff in lieu of removing the earth already deposited in the tank....i was not aware however that.....
Judgment:

Suhrawardy, J.

1. This is an appeal by defendant 1 in a suit for a permanent injunction restraining the defendants from filling up an ejmali tank in which the plaintiff has 6 annas, 4gds. share and defendant 1 has 9 annas 10 gds. share. The defence was that there was a partition of the tank (which the defendant called a ditch) and the defendant was in possession of his shares of it. The trial Court finding that there was partition between the parties dismissed the suit.

2. On appeal the learned District Judge disagreed with the trial Court on the finding of fact and held that the plaintiff was entitled to have a decree as prayed for and gave certain directions for the carrying out of the decree including the direction that the defendant should either remove the earth put by him in the tank or pay Rs. 100 to the plaintiff towards the cost of cleaning the tank and removal of the earth if the plaintiff should find it necessary to do so.

3. This judgment was passed on 23rd April 1928. The decree in pursuance of this judgment was drawn up on 28th April 1928. On 1st May 1928 defendant 1 (the appellant before us) filed an application for review of judgment under Order 47, Rule 1, Civil P.C. On 10th May 1928 this appeal was presented in this Court. The review application, as we shall see later, was granted with reference to a very small portion of the decree. The review was granted and final order was passed on 20th June 1928 and the decree in pursuance of the final order was drawn up on-15th July 1928. On these facts a preliminary objection has been taken on behalf of the respondent that no appeal lies from the decree of 28th April and that there being no appeal from the final decree of 17th July the present appeal ought to fail. It is necessary to consider the preliminary objection first, because, if it succeeds, it will not be necessary to go into the merits of the case.

4. In order to fully understand how far the objection ought to prevail, on the facts of the present case it may be useful to mention the orders passed by the Judge in the lower appellate Court in the matter of review. The application for review was filed, as I have said, on 1st May 1928. The order passed by the Court was:

Petition filed by respondent under Order 47 Rule 1. Put up in the presence of pleader for the appellant tomorrow.

5. Thereafter the matter was heard evidently in the presence of both parties on 4th May 1928. In the judgment which the learned Judge passed on that day he observed that the chief ground on. which review was sought was with reference to the fact of a certain petition filed before the revenue Court and for permission to file certain documents-which were not produced at the trial. The learned Judge went into the matter and considered all the points raised before him on review and passed the final order in these words:

The application is therefore rejected so far as this ground is concerned. The second ground urged in the application for review is. that by my judgment I have directed the applicant to pay Rs. 100 to the plaintiff in lieu of removing the earth already deposited in the tank....I was not aware however that the sum originally claimed was Rs. 10 only. In the circumstances I allow the application for review on this ground. Inform the parties through their pleaders that I shall hear any-'tiling they have to say with regard to this matter on 4th June 1928.

6. The learned Judge heard this matter on 20th June and directed that the plaintiff should get Rs. 30 instead of Rs. 100 as compensation from the respondent. In pursuance of this order, on 17th July l928, the following decree was drawn up. The printed form is headed (Order 41, Rule 35, Civil P.C.):

And it is ordered and decreed in modification or the decree dated 23rd April 1928 that the appellant will get Rs. 30 instead of Rs. 100 as compensation from the respondent. He will Sot additional costs of Rs. 2-1-0 from the respondent as additional ad valorem fee.

7. This decree apparently means to say that the former decree was confirmed in all particulars except the modification indicated therein.

8. Now the question which we are called upon the decide is which one of the two decrees is the decree from which a second appeal should have been preferred to this Court. In other words, which of these two decrees is the decree in the case.

9. Under Order 41, Rule 35 a decree in appeal shall contain, among other things, a clear specification of the relief granted or other adjudication made. According to the definition of decree in Section 2, Civil P.C. a decree is the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Now the decree of 23rd April 1928 does not contain a clear specification of the reliefs granted, 'unless it is read in conjunction with the decree made on 17th July 1928; nor is it a decree which conclusively determines the rights of the parties with regard to all the matters in controversy in the suit. In that sense the last 'decree of 17th July 1928 could not be a complete decree by itself, but read with the previous decree it would show a complete and conclusive adjudication of the matters in controversy between the parties.

10. On the various provisions of the Civil Procedure Code it would appear that the decree which can be called the final decree in the matter must be the decree which finally settles all disputed questions between the parties; and if a decree is modified in review, to whatever extent it may be, the modified decree is the decree which must be considered as the final decree in the case. The question came up for consideration in innumerable cases in almost all the High Courts.

11. So far as this High Court is concerned, this point was considered in Joykishen Mookerjee v. Ataoor Rahoman [1881] 6 Cal. 22 where it was held that an order made on an application for review of judgment, except an order absolutely rejecting the application, becomes, if it in any way modifies or alters the original order, although the modification or alteration extends only to the rectification of a clerical mistake, the final order in the case; and an appeal against it brought within the time prescribed would be within time. Mr. Sanyal for the appellant attempts to distinguish this case by observing that there no order was passed granting the application for review, nor did it pass any order after the hearing of the matter as an order passed on review. What the Subordinate Judge in that case did was to pass one order granting the review and at the same time modifying the decree. I do not think that this distinguishing feature in that case has any bearing on the ratio which, adopted by the learned Judge, which was that the applicant's petition for review was allowed in part and the decree having been corrected in consequence thereof, it must be said that the decree prepared after the review was the only decree in the case. This case has been followed in various cases and on the principle laid down by it, it has been held that even in cases where amendment of the decree was made under Section 206 of the Code of 1882 (Section 152 of the present Code) that, even if a decree is amended for a clerical mistake, the period for appeal should in some circumstances, be reckoned from the time of the amendment and preparation of the decree in pursuance thereof: Brojolal Boy Choudhury v. Tara Prosanna Bhattacharji [1906] 3 C.L.J. 188, Meant Ali v. Amdar Ali [1905] 9 C.W.N. 605. In Nawaj Ali v. Allu A.I.R. 1921 Lah. 82 the principle of Joykishen, case [1881] 6 Cal. 22 was adopted and it was held that the period for preferring an appeal to His Majesty should be reckoned from the time when the decree was amended on an application for review. Though these cases were decided in connexion with the starting point of limitation in the matter of filing of appeals, the same consideration will apply to the present case, for it cannot be argued that a party may have a right of appeal against two decrees. If it is held that he had a right of appeal against the decree after amendment it must be held that he had no right of appeal against the decree which was passed before the amendment.

12. Now as to the effect of the application for review the law has been clearly laid down by Sir Lawrence Jenkins, C. J., in Vadilal v. Fulahand [1906] 80 Bom. 56. When an application was made for review of judgment and that application is dismissed it has no bearing upon the proceeding and it should be ignored. But where the application is received in the sense that the Court orders the other party to show cause why the review should not be granted, or as is generally said a rule is issued, then the Court acts under Order 47, Rule 4 (1) Proviso (a). If the Court, after hearing the parties refuses to alter its original decree, the matter lends there and the parties are relegated to the original decree. But when the Court is of opinion that the application for review should be granted, a note thereof is to be made in the register and the Court may then proceed to rehear the case. The learned Chief Justice is of opinion that if the rule is made absolute and the case is reheard on merits and results in a repetition of the former decree or some variation of it, the result is the same, for in such case, if the whole matter has been reopened, there is a fresh decree. According to this view, even if the Judge holds after making the rule absolute and on hearing the parties, that there was no ground for interfering with his judgment there would still be a decree passed after the old decree. It would not be necessary to go so far as to accept this proposition without further consideration because in the present case the Court as a matter of fact did vary the decree to a certain extent. This view of the matter was adopted by this Court in Gour Krishna Sircar v. Nilmadhab Saha A.I.R. 1923 Cal. 113. This question may also be looked-at from another point of view. It has been suggested that when the Court after receiving the application for review issues a rule or calls upon the opposite party to show cause why the judgment and decree should not be varied, and makes-the rule absolute, it practically orders that the previous decree is vacated : Gour Sunclar Bhowmick v. Rakhal Raj Bhowmick [1918] 34 I.C. 592. The view so early expressed in Joykishen Mooherjee v. Ataoor Rohoman has been recently accepted by the Bombay High Court in Shidramappa v. Gurushantappa A.I.R. 1929 Bom. 183 where the learned Judges observe that the effect of granting an application for review is to supersede the decree which was the subject of such an application and no appeal therefore could be maintained under the decree anterior to the review, but an appeal lay against the subsequent decree-As has been held in Kanhaiya Lal v. Baldeo Prosad [1906] 28 All. 240 the fact that no decree was drawn up or that a decree was drawn up to the extent of the modification would not affect the question.

13. There is another aspect of the case which should not be overlooked. A decree may be modified on review though to some slight extent, but the modification may depend upon the decision of the main matters in controversy in the case. It will not be competent to a party to appeal against the decision which embodies the conclusion of the Court with regard to the main question in controversy and ignore the decree which follows such modification, but is consequent on the decision embodied in the former decree; as for instance costs are awarded on review to a party in pursuance of the former decree where that decree was silent on the point. The principle of 'dependent decree' does not apply in such a case. In the present case for instance, the decree modified on review directed that the defendant should pay to the plaintiff the sum of Rs. 30 under certain circumstances. Now that decree is not appealed against, but it depends upon the finding of the Judge that the plaintiff's suit should succeed upon the merits. If the appellant wants to appeal against the entire decree of the Court below ho should appeal against the decree first passed as well as against the decree passed on review, if he thinks that the first decree is still alive. But he cannot ignore the decree passed on review altogether and appeal only against the decision of the Judge upon the right and title of the parties.

14. That time should run from the date of the decree as amended has been recognized by the legislature by the amendment of the Limitation Act in 1908. With regard to the time from which limitation for execution of a decree should be counted there was a great divergence of opinion between the Allahabad High Court on one side and almost all the other High Courts on the other. The conflict was set at rest by adding Clause 4 to Section 182, Lim. Act of 1908, which says that limitation for purpose of execution should commence from the date of the amended decree. It does not specify the nature of the amendment and therefore it must be said to include all kinds of amendments whether under Section 152 or under Order 47, Civil P. C, or any other provision of law. I may support the view which I am persuaded to take in the matter on the analogy of Article 182, Clause 4, Lim. Act, though it has been observed in Shaikh Golab v. Maharani Janaki Koar [1920] 5 Pat. L.J. 472 that the periods of limitation for execution and for appeal should be considered differently.

15. As a result of the above considerations I am of opinion that the preliminary objection should prevail, that this appeal from the decree dated 23rd April 1928 is incompetent and that as the appellant has not appealed against the decree passed in pursuance of the order in re-view this appeal must fail. We have looked into the merits of the case in order to find if it is a proper case in which we should exercise our power under Section 5, Lim. Act, to extend the period for filing the appeal. We are satisfied that it is not a ease for the use of our discretion under that section. This appeal is accordingly dismissed, with costs.

Costello, J.

16. I agree that the preliminary objection in this case must be upheld. One has only to consider the chronology of the matter to come to the conclusion that it is difficult to hold otherwise than that this appeal is not competent. The memorandum of appeal which was presented in this Court on 10th May 1923 is in these terms:

The aboveuamed defendant-appellant being dissatisfied with the judgment and decree of Mr. Mc Sharpe, District Judge of Khulna, dated 23rd April 1928, in Title Appeal No. 99 of 1928, reversing those of Mr. Sarat Chandra Roy Choudhury, Third Munsif, Khulna, dated 12th March 1928 in Title Suit No. 66 of 1928, begs to prefer this memorandum of appeal from appellate decree, &c.;

17. Then it proceeds to set out the grounds. It is obvious that what he complained of is the judgment and decree of the District Judge of Khulna dated 23rd April 1928. That decree was modified on 20th June 1928. The sequence of relevant dates is as follows : There was a judgment of the District Judge on 23rd April 1928; the drawing up of the formal decree was on 28th April 1928; and then on 1st May 1928 there was an application on the part of the defendant for a review of that decree. On 4th May 1928 the learned District Judge indicated that he would consider the question of reviewing his judgment, at any rate, as regards one portion of it, namely, that part which directed the defendant to pay Rs. 100 to the plaintiff towards the costs of filling up the tank; and then on 10th May this appeal was filed. It is therefore quite clear that the defendant at the time when he filed this appeal knew very well that there was a possibility, not to put it any higher, that the judgment of 23rd April and consequently the decree under it would be altered. In fact on 20th June the review was allowed and the decree was in fact modified to the extent that the sum of Rs. 100 was reduced to Rs. 30. That alteration was embodied in a final decree on 17th July 1928. The general principles applicable to cases of this kind were, in my opinion, if I may respectfully say so, stated by Sir Lawrence Jenkins in the case of Vadilal v. Ful Chand. I have no doubt whatever that the original decree ceases to exist and is superseded and that a new decree is made as a result of whatever modification or alteration may be granted on the hearing of the review proceeding. Directly a review is granted the case is re-opened for consideration and therefore it is necessary in order finally to terminate the proceeding that there should be a new decree. The difficulty which we have discussed in this appeal arises from the fact that under a somewhat complicated provisions of the Coda it is competent to an unsuccessful party to take simultaneous measures for the purpose of endeavouring to obtain a remedy for what he considers to be a grievance. There is no doubt that it is possible to make an application for review and at the same time before that is decided to file an appeal. If a party chooses to file an appeal he can do it in this way; but undoubtedly he runs the risk of losing the benefit which he may have in the review proceeding. In this particular case it is manifest that it would be quite impossible to hold that it is competent to the defendant to proceed with his appeal against the original decree while at the same time there is no appeal against the modification made in the review proceeding. The right course, where parties adopt simultaneous remedies or endeavour to do so, is that if the review measures are successful to any extent whatever, a new decree should be drawn up and the party choosing to file an appeal should file it against the decree as it appears in its final shape. I have no hesitation in expressing the view quite definitely that an application for review, if successful, to however limited extent, puts an end to the original decree, at any rate for the purpose of filing any appeal upon it. If there is any appeal at all, it must be based upon the judgment and decree of the Court in question in its final form. Taking the view that we do with regard to the preliminary objection taken by Mr. Majumdar on behalf of the plaintiff-respondent it is not necessary to go into the other questions raised in the appeal.


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