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Khitish Chandra Chatterjee and anr. Vs. Nagendra Nath Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal513
AppellantKhitish Chandra Chatterjee and anr.
RespondentNagendra Nath Mandal and ors.
Cases ReferredChhajju Ram v. Neki A.I.R.
Excerpt:
- .....in such a case as this:there are two available modes of prcedure for setting aside a decree on the ground of fraud; (1) by suit and (2) by a review of the judgment sought to be set aside, and the latter is the more regular mode of procedure.2. that was laid down in 1881 by mr. justice wilson. this case has been followed by chief justice maclean in 1905 in the case of ram gopal mazumdar v. prasanna kumar sanyal [1905] 2 c.l.j. 508. the law as understood by this court has been uniform during all these years. of course, if the plaintiff pursued one remedy, he cannot, being unsuccesful, again have recourse to the other, but, as it has been held that an application for review is a more regular procedure than a suit, i do not think the munsif was right in throwing out the application without.....
Judgment:

B.B. Ghose, J.

1. In this case the learned Munsif has clearly refused jurisdiction in not entertaining the application for review under Order 47, Rule 1, Civil P.C, and in holding that the petition was not maintainable. The application was made for review of the order on the ground that fraud was praatised upon the petitioner. It has been held in the case of Aushootosh Chandra v. Tara Prasanna Roy [1884] 10 Cal. 612 that in such a case as this:

there are two available modes of prcedure for setting aside a decree on the ground of fraud; (1) by suit and (2) by a review of the judgment sought to be set aside, and the latter is the more regular mode of procedure.

2. That was laid down in 1881 by Mr. Justice Wilson. This case has been followed by Chief Justice Maclean in 1905 in the case of Ram Gopal Mazumdar v. Prasanna Kumar Sanyal [1905] 2 C.L.J. 508. The law as understood by this Court has been uniform during all these years. Of course, if the plaintiff pursued one remedy, he cannot, being unsuccesful, again have recourse to the other, But, as it has been held that an application for review is a more regular procedure than a suit, I do not think the Munsif was right in throwing out the application without deciding it on the merits.

3. The learned Munsif has relied on some oases reported in the Indian cases. One of these cases of Allahabad was pointed out to me by the learned advocate for the opposite party. That is a case where the party pleaded that he had entered into a compromise by reason of coercion and undue influence. That circumstance may not be a ground for review, because it would not fall within the phrase ' new and important matter.' But fraud practised upon the Court or upon the party may be disc0overed after the order is made and it may be a new and important matter which could not be within the knowledge of the applicant at the time when the decree was passed or the order made. The Munsif is also wrong in holding that the Privy Council case of Chhajju Ram v. Neki A.I.R. 1922 P.C. 112 has any application to this matter. That case decided that 'any other sufficient reason' as contemplated in Order 47, Rule 1, Civil P.C, must be of the same nature as the discovery of new and important matter or evidence. Here the applicant did not ask for a review on the basis of 'any other sufficient reason' but upon the ground of discovery of a new and important matter. It is not the practice of this Court, as a rule, to interfere in revision where the petitioner has another remedy which he can pursue in order to gain his end. But where the Court has actually refused jurisdiction to entertain an application, I think it is right that we should set aside the order of the lower Court by which he refused jurisdiction and direct it to try the cases on the merits.

4. This rule is accordingly made absolute and the case sent back to the lower Court for decision on the merits. The petitioner is entitled to his costs which are assessed at one gold mohur.


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