B. Rajan Bettan vs N.M.K. Appu Rao and Others

Maharajan, J.—This appeal is directed against the judgment of Ramaprasada Rao, J. in Civil Miscellaneous Appeal No. 298 of 1962 and

arises under the following circumstances.

In Original Suit No. 25 of 1957 on the file of the Rajahmundry District Court, one Appa Rao, the first Respondent herein obtained a decree

against his own grandfather, one Raja Rao Venkata Kumara Mahipathi, who died during the pendency of these proceedings, and whose legal

representatives are Respondents 2 to 11. The first Respondent being the grandson of the judgment-debtor has also been recorded as one of the

legal representatives. In E.P.R. No. 4 of 1961, the decree-holder filed a petition to execute his decree after getting it transmitted from the

Rajahmundry Court to the Sub-Court at Ootacamund and had the disputed property attached on 11th January 1961. On 6th February 1961, one

Raju Bettan, the Appellant herein and one Raju Gounder preferred a claim petition in Execution Application No. 92 of 1961 under Order XXI,

Rule 58, Code of Civil Procedure. The foundation of their claim was that under exhibit A-1, a deed, dated 4th January 1961, the judgment-debtor

had agreed to sell the disputed property in their favour for Rs. 99,000, that on 4th January 1961 they paid him Rs. 25,000 being a portion of the

sale price and were put in possession of the disputed property on 4th January 1961 itself and that they paid the balance and secured a registered

sale deed, exhibit A-2 on 16th January 1961, they were in possession of the property in their own right, and not on behalf of the judgment-debtor.

This claim was opposed by the decree-holder. By order, dated 13th July, 1961 the learned Subordinate Judge, Ootacamund dismissed the claim

petition, after holding that at the time of attachment it was the judgment-debtor who was in possession of the property attached, and not the

claimants, and that exhibits A-1 and A-2 were the result of collusion between the judgment-debtor and the claimants. Subsequently the claimants

filed Execution Application No. 531 of 1961 under Order XLVII, Rule 1, CPC for review of the order dated 13th July, 1961 whereby Execution

Application No. 92 of 1961 was dismissed. Notice of this application was ordered to the decree-holder, who appeared by Counsel and advanced

arguments in support of the earlier order, a review of which was applied for. The learned Subordinate Judge allowed the review petition with costs,

reversed the order of dismissal of the claim petition, allowed the claim and directed the attachment in Execution Petition No. 4 of 1961 to be

raised. In his order of review the learned Subordinate Judge has elaborately considered the case of the claimants for review and, after

demonstrating that his original order was guilty of certain errors, reviewed the same. In the original order the learned Subordinate Judge held that

exhibit A-1, the agreement of sale, must have been brought into existence fraudulently and in collusion between the judgment-debtor and the

claimants but in the order allowing the review petition he felt constrained to change this view for the following reasons:

In the first place, he omitted to consider the affidavits which had been filed during the claim proceedings, one by Mr. Devaraj Urs, an Advocate

of Coonoor, who had attested exhibit A-1 and A-2, and who swore that he was present at the time exhibit A-1 was concluded and attested it and

that he was also present when in part performance of the agreement of sale the claimants were put in possession of the property in dispute. A

similar affidavit had been filed by T.K. Govindaraj, who was the monigar of Coonoor village. The learned Judge says that though these affidavits

had been filed even in the claim proceedings, the claimants'' Advocate had by inadvertence failed to mark them with the result they had escaped

judicial attention. Had these affidavits been brought to his notice, says the learned Judge, he would certainly have come to the conclusion that the

agreement and the sale were genuine transactions and that in pursuance of the agreement the claimants had actually been inducted into possession

of the property even prior to the date of attachment. Another mistake, which, according to the learned Judge, he had committed, while dismissing

the claim petition, was that he was under the impression that only a sum of Rs. 25,000 had actually been parted with by the claimants under the

agreement and the sale deed, but at the time of review it was brought to his notice that the claimants had, under the terms of exhibits A-1 and A-2,

expressly undertaken to discharge two mortgages of the judgment-debtor aggregating to Rs. 73,720 and that out of the sale consideration of Rs.

99,900 the said amount of Rs. 73,720 was reserved with the claimants for redemption of the mortgages. This discovery, says the learned Judge,

put a different complexion upon his appreciation of exhibits A-1 and A-2.

Under Order XLVII, Rule 1, CPC any person considering himself aggrieved by an order from which no appeal is allowed and who (i) 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 or order was passed or made, or (ii) on account of some mistake or error apparent on the face of

the record, or (iii) for any other sufficient reason, may apply for review of judgment to the Court which passed the order. In this case the affidavits

filed by the Advocate and the monigar were before the Court when the original order dismissing the claim was made. It cannot, therefore, be said

that there was any discovery by the claimants of new and important matter. The important matter was already there on the file of the Court. The

misfortune of the claimants was that the learned Judge did not advert his mind to that important matter. It cannot, therefore, be said that the first

ground of discovery of new and important matter was available in support of the application for review. Nor could the second ground mistake or

error apparent on the lace of the record be pressed into service. But the third ground for any other sufficient reason was certainly available, and it

would cover, in our view, the subsequent discovery by the Judge of important matter, which had been produced before him, but which, on his own

showing, he did not advert his mind to.

After the learned Subordinate Judge reviewed his own order, the decree-holder filed Civil Miscellaneous Appeal No. 298 of 1962 on the �k

of this Court. The learned Judge allowed the appeal, set aside the revised order of the Subordinate Judge in Execution Application No. 531 of

1961 and restored his original order passed in Execution Application No. 92 of 1961. It was vehemently argued before the learned Judge that the

appeal against the order reviewing the original order was not maintainable on the grounds urged by the decree-holder because the appeal did not

fall within the ambit of Order XLVII, Rule 7, Code of Civil Procedure. In support of this argument reliance was placed upon Gopala Aiyar v.

Ramasawmi Sastrigal ILR (1907) Mad. 49 Maduru Brahmayya v. Vedula Vellammal 31 M.L.J. 509, and Srinivasa Ayyangar v. Official Assignee,

Madras ILR (1927) Mad. 891. The learned Judge, without following those rulings referred to Ramanadhan Chetti v. Narayanan Chetti ILR

(1904) Mad. 602 and to an obiter dictum of Rajamannar C.J., in Ananthalakshmi v. M.I. & F. Trust (1951) 2 M.L.J. 19, and adopting the

reasoning contained in the obiter, held that the order of the learned Subordinate Judge was without jurisdiction and violative of Order XLVII, Rule

4, CPC and against the rigid prescribed limits for the exercise of such jurisdiction under Order XLVII, Rule 1. It is against this order one of the

claimants has preferred this Letters Patent Appeal.

The learned Judge has reversed the order granting the review on different grounds, one of which is that it involves a violation of Order XLVII,

Rule 1 of the Code of Civil Procedure. That rule provides that a person aggrieved by an order may apply for a review or the order to the Court

which passed it by making out any of the three grounds mentioned in that rule. Assuming without conceding that an order directing a review can be

attacked on the ground that it involves a violation of Rule 1 of Order XLVII of the Code of Civil Procedure, we shall examine if the learned

Subordinate Judge, who granted the review, acted in violation of that rule. It is true that the third ground mentioned in the rule must be ejusdem

generis with the first two grounds. Was there then any other sufficient reason for the Court to grant a review? In this case, though certain

circumstances and affidavits were placed before the Court even before the passing of the original order, the Court due to inadvertence refrained

from directing its attention to those circumstances and affidavits. If discovery by the party of new and important matter subsequent to the order can

be pleaded in justification of a review, there is much more reason to justify the review when some important matter was before the Court at the

time of the original order, but due to no fault of the party, the Court inadvertently shut out that matter from consideration and acted as if that matter

was not before it. According to the learned appellate Judge, there is nothing important or significant about the two circumstances which influenced

the Subordinate Judge to change his original view. We disagree. The affidavits of the Advocate and the V.M. were to the effect that they were

present when exhibit A-1 was executed and when the claimants were put in possession of the property in part performance of exhibit A-1. These

affidavits had a vital bearing on the truth of the claimants'' case and if accepted, could legitimately tilt the scales in favour of the claimants. There

was also the newly discovered circumstances that the claimants had not only paid Rs. 25,000 under exhibit A-1, but also had undertaken to

discharge two prior mortgages to the tune of Rs. 73,700. These circumstances taken together could dispel the doubts of the Sub-Judge and lend

assurance to the claimants case that they were in possession in their own right in pursuance of a bona fide arrangement. It is not usual for a Judge

to go back upon his own judgment and we must, in fairness to the Sub-Judge, say that without any inhabitation he allowed the newly-discovered

circumstance to change his previously expressed conclusion.

The learned Appellate Judge has criticized the Sub-Judge for having acted upon affidavit evidence, which, according to the learned Judge, is

inadmissible, because the affidavits were filed without any order of the Court as contemplated in Order XIX, Rule 1, Code of Civil Procedure. We

are unable to share this view. It is true that under Order XIX, Rule 1, Code of Civil Procedure, it is open to a Court at any time in any proceeding

to order that any particular fact or facts may be proved by affidavit. But Order XIX, Rule 2. CPC expressly provides that upon any application,

evidence may be given by affidavit, although the Court may, at the instance of either party, order the attendance for cross-examination of the

deponent. Under this rule, even without an order of Court, it is open to a party in an application to file an affidavit, and once it is filed, it is open to

the opposite party to move the Court for a direction to the deponent of the affidavit to attend Court for cross-examination. In this case, though the

affidavits were filed by the claimants, the decree-holder never objected to the filing of the affidavits on the ground he had no notice of the affidavits

(Vide Rule 36 of the Civil Rules of Practice). Nor did he apply to the Court for an order directing the deponents of the affidavits to appear in

Court for cross-examination. In these circumstances, we think that the learned Subordinate Judge was right to act upon the affidavits. In fact, it is a

long-standing practice of the Courts in the moffussil to dispose of claim petitions mainly on affidavit evidence and to discourage the leading of oral

evidence in these summary proceedings. Such a practice is sanctioned by law.

We shall next proceed to consider whether an order directing a review can be attacked in appeal on the ground that it involves a violation of

Order XLVII, Rule 1 of the Code of Civil Procedure. Before doing so, we may refer to Order XLIII, Rule 1 of the Code of Civil Procedure,

which lays that an order under Rule 4 of Order XLVII granting an application for review is appeasable under the provisions of Section 104 of the

Code of Civil Procedure. But it has been held consistently by this Court that Order XLIII, Rule 1 of the Code does not give a general right of

appeal and that it in controlled by Order XLVII, Rule 7 of the Code--Vide Gopala Aiyar v. Ramasami Sastrigal ILR (1907) Mad. 49, Srinivasa

Aiyar v. Nataraja Aiyar (1915) 11 L.W. 366, Maduru Brahmayya v. Vedula Vellamma 31 M.L.J. 509, Srinivasa Ayyangar v. Offirial Assignee,

Madras ILR (1927) Mad. 391 and Mrs. Ananthalakshmi Ammal v. Hindustan Investment and Financial Trust Ltd. (1951) 2 M.L.J. 19 Order

XLVII, Rule 7, runs as follows:

(1) An order of the Court rejecting the application shall not be appeasable; but an order granting an application may be objected to on the

ground that the order was--

(a)....

(b) In contravention of the provisions of Rule 4, or

(c) after the expiration of the period of limitation prescribed therefore and without sufficient cause.

Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed

or made in the suit.

This rule refers to contravention of Rule 4, which has two clauses, the first of which says that where it appears to the Court that there is not

sufficient ground for review, it shall reject the application, and the second of which says that, where the Court is of opinion that the application for

review should be granted, it shall grant the same: Provided that.

(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the

decree or order, a review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the Applicant alleges was not within his

knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

It may be noticed that Rule 7, does not say that an order granting an application for review may be objected to on the ground that there has been a

contravention of the provisions of Rule 1, although it says it may be objected to on the ground that the order was in contravention of the provisions

of Rule 4. This lacuna has led difference of opinion among the High Courts as to the scope of an appeal against an order granting an application for

review. One view is that even if the order granting a review involves a violation of Order XLVII, Rule 1 of the Code, the violation cannot be made

the ground of attack against the order in an appeal and that the only ground of attack available in an appeal is that there has been a violation of

either of tile conditions laid down in the proviso to Sub-clause (2) of Rule 4 of Order XLVII. In other words, where the Court orders that the

application for review should be granted, the only ground upon which that order can be attacked in appeal is that it has been passed (a) without

previous notice of the application for review to the opposite party, or (b) without strict proof of the new matter or evidence, which, according to

the Applicant, was not within his knowledge at the time of the original order and has been discovered by him subsequently, such an order should

not be attacked on any of the grounds mentioned in Order XLVII, Rule 1, Civil Procedure Code, because, it is said, the policy of the Legislature is

that where a Court has reviewed its own order, after expressing its subjective opinion that the application for review should be granted, it should

not be placed in the embracing situation of its opinion being adversely commenced upon in appeal. A Division Bench of this Court has observed in

Maduru Brahmayya v. Vedula Vellamma 31 M.L.J. 509 as follows:

The intention of the Legislature is that the grounds which satisfied a Court that its own judgment requires reconsideration should not be subjected

to adverse comment in a Court of appeal.

Consequently, the Division Bench held that though the order of the Subordinate Judge in that case re vie wine his earlier order was very

unsatisfactory, the appellate Court was precluded from reversing that order, because the grant of the review did not contravene Clause (2) of Rule

The resulting position is that in an appeal against an order granting a review, it is not open to the Appellant to attack the opinion of the Court on

the ground that it involves a violation of Rule 1 of Order XLVII of the Code. This is no doubt the result of putting a rather narrow construction

upon the relevant provisions of the Code of Civil Procedure. We ourselves seriously thought of referring the matter to a Full Bench. But then, we

felt bound by the rulings of this Court in Gopala Aiyar v. Ramasami Sastrigal ILR (1907) Mad. 49, Srinivasa Aiyar v. Nataraja Aiyar (1915) 11

L.W. 366 and Maduru Brahmayya v. Vedula Vellammal 31 M.L.J. 509 which have held the field for nearly 60 years. The learned Judge has relied

upon the obiter dicta of Rajamannar, C.J. in Mrs. A. Ananthalakshmi Animal v. The Hindustan Investment and Financial Trust Ltd. (1951) 2

M.L.J. 19, 21 where the learned Chief Justice says:

We do not see any justification for construing "" Rule 4 "" in Rule 7(1)(b) as confined to Rule 4(2).

In fact, this attractive argument was presented before the Division Bench in Maduru Brahmayya v. Vedula Vellammal 31 M.L.J. 509 and was

negatived in the following words:

Mr. Ramesam''s contention is that even in this view, the reference to Rule 4 in Rule 7(1)(b) is to all the clauses in Rule 4 and not to Clause (2) of it

only. Prima facie the contention seems plausible; but on looking into the matter closely, it is clear that Clause (1) of Rule 4 is not within the rule,

because it speaks of the rejection of the application and not of the granting of it. In the view that we have taken that the word ""application"" in Rule

7 means ""order"" this contention of the learned Vakil must be negatived. The authorities are also against him. Manindra Chandra Roy Chowdhury v.

Balaram Das 11 C.L.J. 161 and Ali Akbar v. Kurshed ILR (1905) All. 695. Mr. Ramesam suggested that although the sufficiency of the ground

for admitting a review may not be open to criticism by the Appellate Court, if the Lower Court does not state in terms that there are sufficient

grounds, the Appellate Court is entitled to set the order aside. Some observations is Bombay and Persia S.N. Company Limited v. The S.S.

Zuari"" ILR (1887) 12 Bom. 171, lend support to this contention. We are unable to accept it. As pointed out by Mr. Nagabhushanam, the old

Code enjoined upon the Court the necessity for recording its reasons for noting that there are sufficient grounds. These words have been omitted in

the new Code. Further, it is only reasonable to assume that a Judge granting a review is satisfied that there are sufficient grounds for doing so. As

pointed out by the Judicial Committee In the matter of the petition of Hadjee Abdoollah Resut Hossein v. Hadjee the Legislature does not

contemplate the calculation of degrees of sufficiency. We must therefore hold that as the grant of the review does not contravene Clause (2) of

Section 4 the fact that the reasons of the Subordinate Judge are not satisfactory for entertaining the application is sot a ground which is open to the

Appellant.

These observations show that the obiter dicta of Rajamannar C.J., do not represent the correct legal position. Of course, there is much to be

said in favour of the view that a violation or contravention of Order XLVII, Rule 4(2) would by implication involve a violation of Order XLVII,

Rule 1 of the Code as well, because Clause 2 says, where the Court is of opinion that the application for review should be granted, it shall grant

the same. Is this opinion of the Court merely subjective or should it be influenced by the considerations prescribed by the Code in Rule 1 of Order

XLVII? If the Legislature had used the words where it appears to the Court that there are sufficient grounds for review, it shall grant the

application for review, it would have been easier to hold that the grounds upon which the Court''s opinion are founded can be canvassed in appeal.

But the language of Sub-rule (2) of Rule 4 being what it is, it does give room for differing interpretations. It may with some force be contended that

the grounds of objection in an appeal under Order XLVII Rule 7 of the Code shall rot be confined to the requirements of the provision but may

extend to the propriety of the opinion itself, which has resulted in granting the review. But then, we have to reject this contention, bound as we are

by a series of rulings of this Court in which the narrower interpretation has been accepted.

We may, however, note that though the order granting a review may not be subject to a full-fledged attack in appeal, the ultimate judgment after

review can always be attacked on its merits in appeal, if any appeal is provided under the law, or by way of revision. In this case, the order having

been passed in a claim proceeding in favour of the claimant, the decree-holder could not treat the same as an appeasable order u/s 47 of the Code

of Civil Procedure. He could only file a revision. Even if we treat the appeal to the High Court as a revision, it cannot be said that the order of the

learned Subordinate Judge is either illegal or perverse, such as to justify interference with it in exercise of the revisional jurisdiction of the High

Court. But after all, the order passed is only a summary order and it is open to the decree-holder to institute a suit to have it set aside. We have

been told at the Bar that the decree-holder is only the grandson of the judgment-debtor. As the decree-holder''s Advocate reported no instructions

in the Letters Patent Appeal, we were curious to know the reasons behind this report. Learned Counsel for the Appellant says that according to

information received by him, there has been a settlement between the decree-holder and the judgment-debtor. Whatever the reason may be, it is

open to the decree-holder to institute a suit, even though he may fail in this appeal, to have the claim order set aside.

In the result, we allow the appeal, set aside the order of the second Appellate Judge and restore the order of the Subordinate Judge in

Execution Application No. 531 of 1971, dated 30th October 1961. There will be no order as to costs.