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Bisheshwar Pratap Sahi and Another Vs. Parath Nath and Another - Court Judgment

LegalCrystal Citation
CourtPrivy Council
Decided On
Case NumberPrivy Council Appeal No. 118 of 1931, Appeal No. 24 of 1930(From: Allahabad)
Judge
AppellantBisheshwar Pratap Sahi and Another
RespondentParath Nath and Another
Advocates:W. Wallach, for Appellants; K.V.L. Narasimham, for Respondents. Solicitors for Appellants, Hy. S.L. Polak and Co.; Solicitor for Respondent, Ram Singh Nehra.
Excerpt:
.....it was decided by the judicial committee that a court hearing an application for the review of a decree on appeal had no jurisdiction to order a review because it was of opinion that a different conclusion of law should have been arrived at, and it was held that r.1, o.47 must be read as in itself definitive of the limits within which review is permitted, and that the words "any other sufficient "reason" must be taken as meaning ' a reason sufficient on grounds at least analogous to those specified immediately previously." see p. 152 of the above-mentioned cited case. in their lordships' opinion the above-mentioned ground stated by the subordinate judge, as the only ground for the application for review, cannot possibly be said to be in any way analogous to the grounds specified in the.....
Judgment:

Sir Lancelot Sanderson:

This is an appeal from a decree of the High Court of Judicature at Allahabad, dated 30th April 1930, which affirmed a decree of the Subordinate Judge of Benares, dated 30th November 1925.

The appellants are the heirs and legal representatives of Mt. Dulhin Radha Dulari Kunwar, hereinafter called Mt. Dulhin, who was defendant 1 in the suit. She died in June 1927, and the names of her legal representatives were placed on the record in her place in May 1928.

The suit was brought on 25th February 1924, by the plaintiff-respondents, both of whom were minors, against: (1) the said Mt Dulhin; (2) Mt. Chhunni, and (3) Mt. Shiam Sundar. The plaintiffs prayed for the following reliefs:

(a) It may be declared by the Court that the plaintiffs ate the owners of the property, detailed below, under a deed of relinquishment executed by Mt. Chhunni in favour of the plaintiffs, dated 14th December 1923, and that it is by no means fit to be attached and sold by auction in execution of decree passed by the Subordinate Judge of Benares, in case No. 129 of 1923-Dulhin Radha Dulari Kunwar, plaintiff v. Mt. Chhunni and others, defendants-laid at Rs. 7,787-10-0.

(b) All the costs of the suit may be charged to defendant 1.

(c) In addition to or in place of the relief aforesaid any other relief to which the plaintiffs may be found entitled in the opinion of the Court may be granted to the plaintiffs."

The following pedigree shows the relationship of the plaintiffs and defendants 2 and 3:

CHART

The following are the material facts: Bishambhar Panda died while the Hindu family was joint, and according to the principle of survivorship Narain Panda, his son, succeeded to and went into possession of his father's property, which is specified in the plaint. Narain died childless on 26th March 1902, his widow having predeceased him, and thereupon his mother Mt. Chhunni went into possession of the said property with the limited interest of a Hindu widow. On 22nd September 1910, Mt. Chhunni and Mr.Shiam Sundar executed what purported to be a simple mortgage deed of four houses therein described in favour of Mt. Dulhin to secure the sum of Rs. 2,635-10.0 and interest. It was therein stated that the borrowing was for legal necessity, the greater part of the money being required to pay off a previous mortgage and certain promissory notes. Mt. Dulhin, defendant 1 in the present suit, instituted a suit on the said mortgage against Mt. Chhunni and Mt. Shiam Sundar, defendants 2 and 3 in the present suit, and judgment therein was given by the Subordinate Judge of Benares on 12th December 1923.

The learned Judge held that the above-mentioned document of 22nd September 1910 had not been proved as a mortgage bond, and that therefore no decree for sale could be given, but he was of opinion that Mt. Dulhin was entitled to a simple money decree. He therefore made a money decree in her favour with costs and the usual future interest.

Two days after this decree, viz., on 14th December 1923, Mt. Chhunni executed a deed of relinquishment of the entire property of which she was in possession, including the property covered by the deed of 22nd September 1910, in favour of Parath Nath and Mangla Prasad, the minor sons of Suraj Prasad Shukul, who are the plaintiffs in this present suit. Suraj Prasad Shukul was the husband of Mt. Chandra Kunwar, and at the time of the deed of relinquishment Mangla Prasad was aged about eight years, and Parath Nath a few months only. On 19th December 1923 Mt. Dulhin, in execution of her decree of 12th December 1923, attached the properly, which is dow in dispute. In January 1924, an application was made on behalf of the plaintiffs in the present suit to set aside the attachment. This application was refused on 26th January 1924. Consequently, on 25th February 1924, the plaintiffs instituted the present suit, the parties to which and the prayers in which have already been stated.

The suit was based upon the said deed of relinquishment of 14th December 1923, executed by Mt. Chhunni, by reason of which it was alleged the plaintiffs had become absolute owners in possession of the said property. It was alleged in the plaint that Mt. Shiam Sundar never bad any title to the property in question Defendant 1 in the present suit, viz. Mt. Dulhin, defended the suit. In her written statement she alleged, among other matters, that the said deed of relinquishment of 14th December 1923 was without consideration, that it was fraudulent, null and void, and that it was contrary to the provisions of Ss. 52 and 53, T. P. Act. The Subordinate Judge, who tried the suit, by his judgment delivered on 22nd December 1924, held that the said deed was on the face of it fictitious and fraudulent, and could not save the property from being attached and sold, that the doctrine of lis pendens applied to the said deed, inasmuch as Mt. Dulhin, not being satisfied with the money decree, had appealed against in, and the appeal was still pending, and the said deed therefore was bad and void. The Sub-ordinate Judge therefore dismissed the suit with costs.

It appears that on the day before, or on the day on which the Subordinate Judge delivered judgment, Mt. Chhunni died, and on 16th January 1925, the plaintiffs applied to the Subordinate Judge under S.114, Civil PC, and O. 47,R.1, of the schedule to the said Code for a review of the decree and judgment of 22nd December 1921. The main ground of the application was that Mt. Chhunni had no more than a life interest in the said property, that on her death the question of the validity of the deed of relinquishment became immaterial, that her life interest vanished with her death, and that the plaintiffs were entitled to a declaration that the properties in suit belonged to the plaintiffs at the date of the said judgment and were not liable to be sold in execution of the decree held by Mt. Dulhin against Mt. Chhunni and Mt. Shiam Sundar. On 30th November 1925, the Subordinate Judge acceded to this application and reviewed his judgment and decree. The following is a material passage from his judgment:

''Under my former judgment only the life-interest of Mt. Chhunni was attached and was to be sold. But with her death she ceased to have any interest in the property, which, by inheritance, goes to and becomes the property of the plaintiffs and so after the death of Chhunni, the plaintiffs are the full owners of the property by inheritance and not under the deed of surrender of 14th December 1923, and thus the property cannot now be sold in execution of a personal decree against Chhunni."

He therefore directed that the claim of the plaintiff's should be decreed, but ordered that the plaintiffs should pay the costs of defendant 1, viz., Mt. Dulhin. It is to be noted that in any event the decree so made was not correct, because as already stated the plaintiffs', claim in the plaint was that they were owners of the property in suit by reason of the deed of relinquishment, and they prayed for a declaration to that effect. The learned Judge held that this claim could not be supported, yet the order made by him was that the claim of the plaintiffs should be decreed. It does not appear that the question whether the Subordinate Judge, under the provisions of O. 47, R. 1, had any right to review his judgment and decree on the above-mentioned grounds, was raised on the hearing of the application for review. Mt. Dulhin appealed to the High Court, and one of the grounds of appeal was that the suit was rightly dismissed and that the Subordinate Judge acted erroneously in reviewing his judgment. Judgment in the appeal was delivered on 30th April 1930. The learned Judges dealt with the question whether Mt. Dulhin, having obtained a money decree only against Mt.Chhunni, could proceed in execution against the properties in suit which had come into the possession of the plaintiffs as the next reversioners on the death of Mt. Chhunni. They decided against the appellant on that question and dismissed the appeal with costs.

There is nothing in the judgment to indicate that the above-mentioned question, whether the Subordinate Judge had any right to review the judgment and decree of 22nd December 1924, was argued in the High Court. It appears that Mt. Dulhin died during the pendency of the appeal to the High Court, and by order of the Court, Bisheshwar Pratap Sahi and Nameshwar Pratap Sahi were added as parties in her place. The two last-mentioned persons, as already stated, appealed to His Majesty in Council against the above-mentioned judgment and decree of the High Court.

One of the grounds of appeal was that the plaintiffs' suit was based on their title under the deed of relinquishment dated 14th December 1923, and should have been dismissed in any event. It was argued on behalf of the appellants that under the provisions of S.114, Civil PC, and of O. 47, R.1, the Subordinate Judge had no right to review his judgment and decree on the above-mentioned grounds. As already stated, the appellants do not seem to have insisted upon this point in the Courts in India, although it was included in the memorandum of appeal to the High Court. In spite of this their Lordships are of opinion that they are bound to consider the question which has been clearly raised in the appeal to His Majesty in Council. It is a pure question of law, and no new evidence is necessary to enable their Lordships to dispose of the matter. S.114, Civil P.C., 1908, is the "Review" section, and is as follows:

"114. Subject as aforesaid, any person considering himself aggrieved-(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed by this Code; or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."

This section has to be read with O.47, R.1, Sch.1 of the Code, inasmuch as the Code provides that the rules in Sch.1 shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of the Code. O.47, R.1 (i) prescribes the grounds upon which an application for review may be made; and unless this case can be shown to be within the terms of this rule, the review ought not to have been granted. The provisions of the rule are as follows:

"1. (1) Any person considering himself aggrieved-(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed; or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

(1) Chajju Ram v. Neki, 1922 PC 112=72 IC 566=49 IA 144=3 Lah 127 (PC).

In considering this question, it is necessary to remember the ground on which the review was granted. A passage in the Subordinate Judge's judgment states the ground shortly and clearly; it is follows:

"But it so happened that Chunni died just on the day when 1 delivered judgment or a day before, and on that ground the plaintiffs applied for a review of judgment and their application was granted."

It is obvious that the above-mentioned ground is not one of the grounds specified in O. 47,R.1 (i) and the application for review can only be supported, if at all, by reference to the words "or for any other sufficient reason." These words are of a general character, and apart from authority would seem to leave the sufficiency of the reason to the unfettered discretion of the Court. But there is authority to the contrary, and it has been held that a limited meaning must be put upon the above-mentioned words.

In 49 IA 114 (1) it was decided by the Judicial Committee that a Court hearing an application for the review of a decree on appeal had no jurisdiction to order a review because it was of opinion that a different conclusion of law should have been arrived at, and it was held that R.1, O.47 must be read as in itself definitive of the limits within which review is permitted, and that the words "any other sufficient "reason" must be taken as meaning ' a reason sufficient on grounds at least analogous to those specified immediately previously." See p. 152 of the above-mentioned cited case. In their Lordships' opinion the above-mentioned ground stated by the Subordinate Judge, as the only ground for the application for review, cannot possibly be said to be in any way analogous to the grounds specified in the rule. Indeed, it was not seriously contended before their Lordships on behalf of the respondents that the application for review was properly granted.

It was urged that if the application for review had bean refused the respondents could have appealed from the Subordinate Judge's judgment of 22nd December 1924. Their Lordships express no opinion on this question, or upon the question which was raised during the argument whether the respondents still have a right of appeal; they merely point out that if their right of appeal has been lost, as to which they express no opinion, it was due to their own action in making an application for review, which cannot be supported. Their Lordships are therefore of opinion that the application for review should not have been granted, and in view of this decision it is not necessary or desirable for their Lordships to express any opinion upon the questions raised in the judgment of the High Court which form the basis of the grounds of Appeal Nos. 1 to 4 in the appeal to His Majesty in Council.

This appeal therefore must be allowed on the ground that the Subordinate Judge had no jurisdiction to grant the review. The result is that the Subordinate Judge's judgment of 30th November 1925, by which he granted the application for review, and made a decree in the plaintiff-respondents' favour, must be set aside except in so far as it relates to the costs of defendant 1, and the judgment and decree of the High Court dated 30th April 1930, which affirmed that judgment and decree of the Subordinate Judge must also be set aside. The original judgment of the Subordinate Judge dated 22nd December 1924 must be restored. By reason of the fact that the ground on which the appeal to His Majesty in Council is allowed apparently was not relied upon in the High Court, their Lordships are of opinion that there should be no order as to the costs in the High Court and of this appeal. Their Lordships will humbly advise His Majesty accordingly.

Appeal allowed.


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