Inder Mahton and Others vs Ramkishun Missir and Others

COURTNEY-TERRELL, C.J.—This is an application for review of a judgment given in a Letters Patent appeal delivered by Adami, J., late of this Court, and myself. An objection has been taken that a review does not lie against decisions of this Court under the provision for Letters Patent appeals. The ordinary principle which governs all tribunals is that when once the Judges have signed and delivered their judgment they are functus officio and the only remedy of a person aggrieved by the judgment is to take the case to an appellate tribunal, if an appeal is allowed by the law. The provisions for review constitute an exception to the general rule which forbids a Judge from reversing or modifying his judgment when once the judgment has been pronounced and it being an exception to a general rule of principle it is only exercisable in circumstances where it is distinctly provided for by statute. No Court has any inherent power to modify judgments when once they have been pronounced subject always to this qualification that under specific rules the Court has inherent power to modify judgments and decrees to the extent of correcting merely clerical errors. Matters of that kind are dealt with by Sections 151, 152 and 153, Civil P.C.

Now a review is a special jurisdiction and it can only be exercised by the Judge who has himself heard the case. The power of review is in a sense a limited power given to a Judge or Judges which might, if an appeal had been possible and had been presented have been exercised by an appellate Court. This limited power is exercisable when new and important matter is discovered after the judgment which with reasonable diligence could not be discovered before and in cases where there has been a mistake which is apparent upon the face of the record and there may be other and cogent reasons impossible to foresee which have been provided for by the words "for any other sufficient reason." In these limited circumstances the Judge himself who gave the original decision may modify that decision. That right: of review is only conferred by the Civil. Procedure Code in proceedings to which the CPC is made applicable either by the terms of the Code itself or by other legislation which expressly incorporates the provisions of the CPC for this particular purpose. It is not an inherent power and from its very nature it can only be exercised in very circumscribed circumstances. The right to apply for a review is governed by Section 114, Civil P.C., as the substantive section and the details of procedure are worked out in Order 47 and the rules which are incorporated in the Code. Section 114 limits the right of an aggrieved person to apply for a review to three specific sets of circumstances. By para, (a) of that section a review is permitted where the applicant is aggrieved by a decree or order from which an appeal is allowable by the Code but from which no appeal has in fact been preferred. With that paragraph we are not in this case immediately concerned. The next circumstance is the case where an applicant is aggrieved to quote the words of the paragraph by a decree or order from which no appeal is allowed by this Code." With the third circumstance we are not concerned and it need not be mentioned.

In my opinion the meaning of the section is this: There are certain classes of cases specified in the Code in which an appeal against a decree or order is specifically allowed by the Code. There are number of other decrees or orders which are specified in the Code and from which it is expressly stated that no appeal will lie and it is to these two classes of cases that the rule permitting applications for review apply and to no others. The Code is self-contained and two classes of cases are made quite distinct from one another and the words in para. (b) "from which no appeal is allowed by this Code" mean "from which an appeal is disallowed by this Code." I was at first given some difficulty by the construction of para. (b) and was inclined to think that taking that paragraph by itself it divided up decrees or orders into two classes, the one class being that in which an appeal was specifically allowed by the Code and the other containing all other classes of decrees or orders. I was tempted to take the construction which would make it only necessary to inquire whether an appeal from a decree or order was or was not allowed by the Code. If that had been the right construction then it would follow that as an appeal from a Letters Patent decision was not expressly allowed by the Code that Clause (b) would apply to the circumstances of the case and that a review would lie.

I am satisfied however that that construction would be erroneous and that the true construction is having regard to the general framing of the Code as a whole that the words "no appeal is allowed by this Code" means "where an appeal is disallowed by this Code." There is one argument which has appealed very strongly to my mind against the first impression. It would involve reading para. (b) as though the words "by this Code" had been omitted and that it could be read as "by a decree or order from which no appeal is allowed," imply the substitution of the words "by any process of law" for the words "by this Code," but it being obligatory upon me to give a meaning to words which have been expressly placed in the Code I must give effect to those words and see whether the Code does or does not expressly allow the appeal. Now the cases in which an appeal is allowed in the Code are specified in detail in various parts of the Code and are too numerous to mention and they do not include appeals from a Letters Patent decision. In fact the process of appeal under the Letters Patent is not conferred by the Code at all. That jurisdiction arises exclusively from Clause 10 of the Letters Patent itself. It was suggested to me having regard to certain prior decisions that this was a matter which might be referred to a Full Bench of this Court to determine, but the question does not present those features of difficulty which would justify that procedure. The matter has been recently dealt with by a Full Bench of the Allahabad High Court in the case of Mt. Abhilakhi Vs. Sada Nand and Others which by a majority of two to one the learned Judges decided that no application for review lay against a decision on appeal under the Letters Patent and with the reasoning of the majority I entirely agree. It is true that a different view of the matter was taken by Shah, J., of the Bombay High Court in the case of Ratanchand Khimchand v. Damji Dharsey AIR 1927 Bom. 232. The application was dismissed because an appeal to His Majesty in Council had been preferred and also on the merits. The learned Judge seems to have thought that because the CPC is by Section 117 made applicable to Letters Patent appeals it necessarily followed that its provisions as to review are applicable to such appeals. The answer to this argument is that the Code applies the rule as to applications for review to cases in which such applications may u/s 114 be made, and on my construction of the section decisions in Letters Patent appeals are not within the scope of Section 114.

A similar opinion was expressed by the Madras High Court in the case of Venkata Subbarayudu v. Krishna Yachendrulu Varu [1917] 40 Mad. 651 and it is open to the same answer. In my opinion the preliminary objection succeeds and I decide that applications for review of this character are not admissible. This application is therefore dismissed.