Mahabir Singh and others vs Baldeo Singh and others

Fazl Ali, J.—The question which I am asked to decide is whether an application for review should be accompanied by a copy of the judgment or order sought to be reviewed. O. 47, R. 3, provides that the provisions as to the form of preferring appeals shall apply mutatis mutandis to applications for review. O. 41, R. 1, which is the provision applicable to appeals states that the memorandum of appeal shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. Mr. Sant Prasad who appears on behalf of the opposite party contends that when these provisions are read together, they give rise to the irresistible inference that an application for review must be accompanied by a copy of the order or judgment which is to be reviewed. He also relies strongly upon S. 12, Lim. Act, which provides that in computing the period of limitation prescribed for an appeal or an application for leave to appeal and an application for review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. It is contended, and in my judgment, there is some force in the contention, that if it was not intended that an application for review should be accompanied by a copy of the judgment, there was no necessity for making the provisions referred to above in the Limitation Act. Mr. Sant Prasad has also referred me to the cases reported in Gangadhar Karmakar and Others Vs. Shekharbasini Dasya and Others, and Chokallngam Chetty v. Lakshumanan Chetty, 1920 Mad 633 = 55 IC 444 = 38 MLJ 244 to show that in those cases the parties seeking for review were allowed to exclude the time requisite for obtaining a copy of the order sought to be reviewed. Now I must state here that I would have had no hesitation in deciding the question raised before me in favour of Mr. Sant Prasad but for the fact that a Pull Bench of the Allahabad High Court has decided in Wajid All Shah v. Nawal Kishore, (1895) 17 All 213 = 1895 AWN 61 (FB) that it is not necessary that an application for review should be accompanied by a copy of the decree, order or judgment sought to be reviewed. Indeed all the arguments which are advanced by Mr. Sant Prasad have been dealt with in this judgment and even though one might not be inclined to agree with all that is said there, there is no doubt that that judgment is entitled to very great respect, particularly as it has not, so I am told, been expressly dissented from by any other High Court. It appears that in 1916 the stamp reporter drew the attention of a Division Bench of this Court to this decision of the Allahabad High Court, but the learned Judges, Sharfuddin and Roe, JJ., expressed their view that it was necessary that the judgment sought to be reviewed should be filed with the application. Since then I am told the practice of this Court has been not to consider an application for review as competent without copy of the judgment or order sought to be reviewed. But as the learned Registrar has pointed in Civil Review No. 47 of 1932, that is a matter of practice and it is another question whether when in an application for review the copy of the order sought to be reviewed is not filed until after the expiry of limitation, though the application was in other respects in order and in time, it can be on that account alone held to be time barred. Unfortunately when Sharfuddin and Roe, JJ., held that it was necessary that a copy of the order sought to be reviewed should accompany the application for review, they did not clearly state whether they held it as a matter of law or whether they thought that that should be the practice of this Court. The rules of this Court how ever still do not expressly provide that in the case of an application for review the application should be accompanied by a copy of the judgment or order sought to be reviewed.

In these circumstances I would refrain from expressing any opinion on the merits of the question, but would suggest that the Registrar should take early steps for the necessary amendment of the rules so as to bring them into conformity with what is said to be the existing practice of this Court. It is also unnecessary to decide the question raised before me in view of the fact that the petitioner has made an application under S. 5, Lim. Act, for extending the period of limitation and in the special circumstances of the case particularly as the rules of this Court do not definitely provide for the filing of a certified copy of the judgment with the application for review, I think that the application made by the petitioner under S. 5, Lim, Act, should be granted. It appears that an uncertified copy of the judgment was filed with the application for review within the period of limitation, but as the office required the appellant to produce a certified copy, the uncertified copy was taken back and a certified copy was filed afterwards. As the application under S. 5, Lim. Act, is granted, the application for review will be registered as competent and will be disposed of in the ordinary course. There will be no order for costs.