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Nand Kishore Singh and ors. Vs. Ram Gulam Sahu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.221
AppellantNand Kishore Singh and ors.
RespondentRam Gulam Sahu and ors.
Cases ReferredGooroo Persad v. Juggut Chunder
Excerpt:
review - privy council, appeal to--order refusing leave to appeal to privy council, if open to review--civil procedure code (act v of 1908), order xlv--value below rs. 10,000 even if interest up to date fixed for redemption is added--value above the sum if interest subsequent to that date is added--redemption suit when leave should be granted. - .....experienced and eminent vakils of this court, immediately told us that though the value of the subject-matter on appeal to his majesty in council was upwards of rs. 10,000, still the value of the subject-matter of the suit was not rs. 10,000 and, consequently, he could not support the application. the result was, it was rejected.2. it is now sought to obtain a review of this order under section 114 of the code and order xlvii. it is objected on the part of the respondent that no such application can be made and for the purposes of supporting that contention, our attention has been drawn to a number of decisions in which it has been held that no appeal lies under the letters patent from the orders of a single judge, rejecting an application for leave to appeal to the privy council......
Judgment:

1. This is an application to review an order made by us under Order XLV of the Code of Civil Procedure. By that order, we rejected an application for leave to appeal to His Majesty in Council and we did so upon this ground. The learned Vakil for the applicant, one of the most experienced and eminent Vakils of this Court, immediately told us that though the value of the subject-matter on appeal to His Majesty in Council was upwards of Rs. 10,000, still the value of the subject-matter of the suit was not Rs. 10,000 and, consequently, he could not support the application. The result was, it was rejected.

2. It is now sought to obtain a review of this order under Section 114 of the Code and Order XLVII. It is objected on the part of the respondent that no such application can be made and for the purposes of supporting that contention, our attention has been drawn to a number of decisions in which it has been held that no appeal lies under the Letters Patent from the orders of a single Judge, rejecting an application for leave to appeal to the Privy Council. Mr. Justice Wilson, in the case of Lutf Ali Khan v. Asgar Reza 17 C. 455 bases this conclusion on the view that the order was not a judgment within the meaning of the Letters Patent. If that be the reason why an appeal does not lie from an order of a single Judge, it affords no answer to an application for review.

3. Section 114 of the Code provides that a party, who is aggrieved by an order from which no appeal has been preferred or from which no appeal is allowed by the Code, may apply for a review of the judgment to the Court which made the order, and the Court may make such order thereon as it thinks fit. The order of rejection comes within this description and the application for review is, therefore, within the terms of Section 114. I fail to see how it can be said the order of rejection was not an order of a Civil Court; it was under Order XLV of the Code, which is an Act to consolidate and amend the law relating to the procedure of the Courts of Civil Judicature.

4. Moreover, I would point out, in support of this view, that when an application for review is rejected by a Court, other than a High Court, then, under Order XLIII, Rule 1, an appeal lies from such order. I, therefore, can see in the Code itself nothing to support the view that the order of the High Court under Order XLV is not subject to review.

5. The next question is whether the applicant has made out a case for review.

6. It is now contended that the value of the subject-matter of the suit in fact was Rule 10,000, or upwards, and that there is an error apparent on the face of the record. But when the facts come to be investigated, it is conceded that even if interest be calculated not only up to the decree, but even up to the end of the six months allowed for redemption, the sum of Rs. 10,000 is not reached. In this connection, I would refer to the case in Gooroo Persad v. Juggut Chunder 8 M.I.A. 166 at p. 169 : 3 W.B. (P.C.) 14 where it was stated that 'their Lordships must not, of course, be understood to intimate that the Sudder Courts are to give leave to appeal in cases in which the specified amount of Rs. 10,000 can only be reached by the addition of interest subsequent to the decree. Such cases must, in their Lordships' opinion, rest in their discretion:' that it, in the discretion of the Judicial Committee. There were, therefore, grounds for the conclusion at which the learned Vakil arrived as to the insufficiency of the value of the subject-matter of the suit and, it is not made out that there is an error apparent on the face of the record or any sufficient reason for granting the review. If leave to appeal is to be obtained, it must, in the circumstances, be obtained from their Lordships of the Privy Council and not from us.

7. The application must, therefore, be dismissed with costs, three gold mohurs.


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