Mahabir Prasad and others vs Nathin Thakur and another

Beverley, J.—In this case the Munsiff granted a review of judgment on the ground that at the time of hearing both of the applicant''s pleaders were accidentally absent and the applicant himself had gone to fetch money wherewith to engage a third pleader. An appeal against that order was preferred to the District Judge, who held that the circumstances alleged did not constitute sufficient reason for granting a review and set the order aside.

This rule was obtained to set aside the order of the District Judge as having been made without jurisdiction.

Sec. 629 of the Code provides that when an application for review is admitted, the admission may be objected to on the ground that it was (a) in contravention of the provisions of sec. 624, (b) in contravention of the provisions of sec. 626, or (c) after the expiration of the period of limitation prescribed therefore and without sufficient cause.

And that such objection may be made at once by an appeal against the order granting the application.

It is clear, therefore, that an appeal against the order will only lie upon one or other of these three grounds: and this was held by the Bombay High Court in Bombay and Persia Steam Navigation Co. v. S.S. Zuari ILR 12 Born. 171.

It is admitted that the order in question does not contravene the provisions of sec. 624, and was not made after the period of limitation prescribed therefore; it is said that it contravenes the provisions of sec. 626.

Sec. 626 provides that "if the Court be of opinion that the application for the review should be granted, it shall grant the same, and the Judge shall record with his own hand his reasons for such opinion, 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, 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, without strict proof of such allegation; and (c) an application made u/s 624 to the Judge who delivered the judgment may, if that Judge has ordered notice to issue under proviso (a) to this section be disposed of by his successor."

Now in this case the Munsiff being of opinion, that the application should be granted did grant it and recorded the reasons for his opinion; and it is not contended that the application was granted without previous notice to the other side. Provisos, (b) and (c) do not apply.

It is impossible, therefore, to maintain that the application was granted in contravention of the provisions of sec. 626.

That being so, we are clearly of opinion that there was no appeal against the Munsiff''s order admitting the review and that the order of the District Judge of the 26th July last, was made without jurisdiction. We accordingly make the rule absolute, and set aside that order with costs one gold mohur.