1. This is an application on behalf of the defendant asking for a review of a decree passed by me on March 4, 1936.
2. The following are the circumstances which have led up to the application. The plaintiff filed a suit against the defendant in 1930 asking for a decree for commission which he said was due in respect of certain contracts to supply timber and sleepers to the Railways, which the plaintiff had been instrumental in obtaining for the defendant. On August 14, 1931, a consent decree was passed by Buckland, J., and it was referred to an Officer of the Court to report as to which of the contracts mentioned in the plaint remained unexecuted or unfulfilled owing to the default or negligence of the defendanti and as to what amount, if any, was due to the plaintiff by the defendant by way of damages or by way of commission. The dispute arose because of a term in the agreement, whereby the defendant not only undertook to pay commission on timber actually supplied, but also upon timber which he might fail to supply through his default or negligence. The plaintiff's claim was entirely, or almost entirely, in in respect of timber which the defendant was alleged to have failed to supply owing to his default or negligence. The Officer of the Court to whom the matter was allocated, made a report and in his findings expressed the opinion that there was no default or negligence on the part of the defendant, and that accordingly the plaintiff was not entitled to recover any sum from the defendant.
3. The plaintiff moved to discharge or vary that report and the application was dealt with by me. I delivered judgment on March 4, 1934, and held the findings of the Court's Officer should be upheld with regard to all the contracts which were the subject-matter of the suit except one. With regard to that contract, I held that there had been default within the meaning of the agreement, and that the plaintiff was entitled to recover a sum of Rs. 6,466 as commission in respect of timber which, out for his default the defendant would have supplied to the Railways. I said nothing about a decree being drawn up in t6fms of my judgment, and 1 am inclined to think that I dealt with the matter on the basis that it would thereafter come up for further directions on report. However, on March 7, 1936, the plaintiff put in a requisition for drawing up the decree. At the time when this suit was instituted, there was an application on the part of the plaintiff for the appointment of a Receiver of the various sums of money due from the Railways to the defendant. Eventually ho Receiver was appointed, and the plaintiff was secured by the defendant's depositing Government Paper to the value of Rs. 20,000 in Court, and by his undertaking not to execute a decree for Rs. 3,725 which he obtained in the Subordinate Judge's Court at Agra on June 19, 1930.
4. In the statement of facts which the plaintiff filed before the Assistant Referee, he made the following admission:
I claim a sum of Rs. 19,677-4-0 from the said defendant as my commission as well as costs of this suit including this costs of the reference less the sum of Rs. 3,648 due by him to the defendant in respect of the Promissory Note mentioned by the defendant in para. 7 of his written statement's.
5. Having regard to that admission, I think it cannot be questioned that if it had been realised on March 4, 1936, that my Judgment dealing with the exceptions was going to be made the basis of a decree for the amount I found due by the defendant by way of commission, I should certainly have given the defendant credit for the amount of the Agra decree and directed the decree should be for the sum of Rs. 6,466 less the amount of Rs. 3,648 admitted by the plaintiff to be due. Learned Counsel who has appeared for the plaintiff has invited me to examine the pleadings with a view to coming to a decision whether a prima facie valid claim to set-off is made in the written statement. I decline to do this, because I think the plaintiff's admission in his statement of facts must be taken to be a waiver of any objection which he might have to the defendant's claim on his decree being Haken into consideration in this suit. It is said that insolvency proceedings are pending against the plaintiff and that if I give the defendant credit for the sum admitted, the plaintiff will be charged with unduly preferring the defendant to his other creditors: as the plaintiff had strenuously objected to the application, I do not think there is any fear of such a charge being made.
6. In my opinion, the case, is prima facie a case for review, since had I realised that a decree was going to be drawn up in terms of my judgment, I should have directed that the defendant should have the benefit of the admission of the plaintiff's indebtedness to him incorporated in the decree.
7. It is suggested that the plaintiff's attorney has a large claim for costs and that if a smallar sum is left in Court, on which the attorney can exercise his lien, than would be the case if the decree were permitted to remain in its present form, the attorney will be prejudiced. Unless the attorney can go to the extent of saying that there is a fraudulent arrangement between the plaintiff and the defendant and that when the money is taken out of the Court, the plaintiff will get the whole of his claim from the defendant and thereby be able to defeat the attorney's lien. I do not think the attorney can be heard in the proceeding.
8. Counsel appearing on behalf of the plaintiff has, as I have said, resisted the application) and there is no material on which I am entitled to say that the application is designed to carry out such an arrangement as I have indicated.
9. Two technical points have been raised: the first arises out of Order XXVII, Rule 1(1)(a). The decree of March 4, 1936, is appealable and under Rule 1, a person is only entitled to ask for a review of an appealable decree, when no appeal has been preferred. In this case the memorandum of review was filed on May 20, 1936. On May 25, 1936, a memorandum of appeal was tiled against the decree of March 4. Prima facie, therefore, the defendant does not satisfy the provisions of Rule 1. However, it has been held that if the application for review is presented before the appeal is preferred, the Court is not deprived of jurisdiction to entertain the application for review, on the ground that, which the application comes on to be dealt with, an appeal is pending. Under Chap. XXXII, Rule 34 read with Rule 2 and 3 of the Rules and Orders of the Original Wide, the review of a decree or order made on the Original Side has to be initiated by a memorandum. At one time I was inclined to think that the application for review should not be considered to be made until it was urged in Court. Having regard, however, to the language of the Rules and Orders have come to the conclusion that the application for review must be held to be made when the memorandum of review is filed. I notice that with regard to proceedings in the Court of a Subordinate Judge, it was held in Pyari Mohan Kundn v. Kalu Khan 44 O 1011 : 41 Ind. Cas. 497 : AIR 1917 Cal. 29 that where an application for a review of judgment was filed on June 26 and an appeal to the. High Court was filed on July 4, the Subordinate Judge's Court was held to have jurisdiction to deal with the application for a review when it came up for hearing on August 5. I think I can apply this principle to the Original Side of the High Court. The person who files a memorandum of review takes a step which initiates proceedings for review, and by doing so applies for a review of judgment within the meaning of Order XLVII, Rule 1.
10. Another point taken is that the application for review is barred by limitation. The period of limitation under Article 162 is twenty days from the date of the decree or order. Of course, this is subject to the provisions of Section 12(2) of the Indian Limitation Act which provides that in computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for a review of, judgment, the day on which the judgment, complained of, was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.
11. Under our Rules, the person against whom a decree or order is obtained cannot apply for drawing it up unless the other party fails to do so within four days from the date of the decree or order. In this case, the plaintiff applied to have the decree drawn up on March 7, 1936. The decree was finally filed on April 28, 1936. In my opinion the defendant was entitled to exclude the time between the decree and the filing thereof. In other words, limitation began to run from April 28, 1936. On May 18, 1936, when limitation was about to expire but had not expired, the defendant applied for a copy of the decree. He obtained a copy on May 20, 1936, on which date he filed his memorandum of review. I think he is entitled to exclude the period from May 18, till May 20, as well as the period from March 4 to April 24. In these circumstances, he is just within the period of limitation.
12. For the reasons 1 have given, I vary the decree by directing that it be reduced by-the sum admitted to be due to the defendant by the plaintiff in his statement of facts, that is to say, by Rs. 3,648. The defendant is entitled to the costs of this application. I direct, however that any application for payment out of Court must be made on notice to the plaintiff's attorney.