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

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in119Ind.Cas.371
AppellantKshitish Chandra Chatterjee and ors.
RespondentNagendra Nath Mandal and ors.
Cases ReferredChhajju Ram v. Neki
Excerpt:
civil procedure code (act v of 1908), section 115, order xlvii, rule 1 - decree obtained by fraud--application for setting aside decree by way of review, competency of--order rejecting application as not maintainable--revision. - .....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 discovered after the order is made and it may be anew 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 72 ind. cas. 566 : 49 i.a. 144 : 36 c.l.j. 459 : 30 m.l.t. 295 : 26 c.w.n. 697 : 41 p.l.r. 1922 : 3 p.l.t. 435 : a.i.r. 1922 p.c. 112 : 16 l.w. 37 : 17 p.w.r. 1922 : 3 lah. 127 : 43 m.l.j 332 : 24 bom. l.r. 4 u.p.l.r. (p.c.) 99. (p.c.) has any application to this matter. that case decided that any other sufficient reason' as contemplated in.....
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 XLVII, Rule 1, Civil Procedure Code, and in holding that the petition was not maintainable. The application was made for review of the order on the ground that fraud was practised upon the petitioner. It has been held in the case of Aushootosh Chandra v. Prasanna Roy 10 C. 612 that in such a case as this 'there are two available modes of procedure for setting aside a decree on the ground of fraud: (1) by suit, and (2) by a review of the judgment sought to beset aside and the latter is the more regular mode of procedure.' That was laid down in 1834 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 2 C.L.J. 508 : 10 C.W.N. 529. The law understood by this Court has been uniform during all these years. Of course if the plaintiff pursued one remedy, he cannot being unsuccessful 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. The learned Munsif has relied on some cases reported in the Indian Oases. 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 discovered after the order is made and it may be anew 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 72 Ind. Cas. 566 : 49 I.A. 144 : 36 C.L.J. 459 : 30 M.L.T. 295 : 26 C.W.N. 697 : 41 P.L.R. 1922 : 3 P.L.T. 435 : A.I.R. 1922 P.C. 112 : 16 L.W. 37 : 17 P.W.R. 1922 : 3 Lah. 127 : 43 M.L.J 332 : 24 Bom. L.R. 4 U.P.L.R. (P.C.) 99. (P.C.) has any application to this matter. That case decided that any other sufficient reason' as contemplated in Order XLVII, Rule 1, Civil Procedure Code, must be of the same nature as the discovery of new and important matter of 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.

2. 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 is assessed at one gold mohur.


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