Meduru Brahmayya vs Vedulu Yellamma and Others

Seshagiri Aiyar, J.—This case is typical of the want of care, precision and information with which execution applications are presented to

Courts. The decree was passed on the 31st of March 1900. The applications, made from 1903 up to the one we are dealing with, were all

dismissed owing to failure to comply with the requirements of the law. The application of the 22nd March 1912, just within a few days of 12 years,

was so defective that the Court had to return it for amendment no less than six times. This went on till the 28th June 1912. On this date, the

Subordinate Judge felt bound to dismiss the application, as the particulars he called for were not furnished. A perusal of the B diary shows how

negligent was the conduct of these proceedings. Then we enter upon another stage. On the 8th of July, an application for restoration was

presented, accompanied by affidavits which are as inadequate as any can be. Here again, the B. Diary shows that the Court had to return the

petition for amendment more than once. After the amendments were made, Batta was not paid as directed"", and the Court dismissed the

restoration application on the 14th of August 1912. Then an application for restoring this dismissed restoration petition was made, and that was

granted on the 18th of November 1912, and final orders were passed on it on the 25th of March 1913. One cannot help saying that the way this

petition has been conducted is calculated not only to unduly and unnecessarily waste the time of the Court, but to endanger seriously the interests

of the parties.

We now proceed to deal with the petition on the merits. Mr. Nagabhushanam has taken the preliminary objection that the appeal is

incompetent, inasmuch as it is based on grounds other than those to which an appellant is restricted by Order XLVII, Rule 7.

The question has been argued at length by the learned Vakils on either side. The first matter which attracts attention is the peculiar wording of

the rule. Clause (1) says that ""an order granting an application may be objected to on the ground that the application"" was in contravention of

certain provisions. Clause (a) does not require -much notice. The expression application or order would be equally applicable to the provisions of

Rule (2), although there can be no doubt that the Legislature had in mind the contingency of the order granting the review being made by another

Judge rather than the fact that the presentation of the application was to a different Judge. But when we come to Clause (6) the inappropriateness

of the wording is manifest. Rule 4,(2) relates to the granting of the application. There can be no doubt that the grounds of appeal will ordinarily be

directed against the order granting the review. Clause (c) may refer to the application itself and. not to the final order.

The language of the old Code appears to express the intention of the Legislature more clearly, although the words ""the admission may be

objected to"" in Section 629 can hardly apply to Clause (c), which corresponds to Clause (c) of Rule 7(1). We have been trying to find out whether

the change in the language indicated any deliberate departure from the old law. As the word application"" would convey no meaning as applied to

Clause (6) of Rule 7(1), we are constrained to think that the change is attributable to mistake and not to deliberate change in law.

The next point for consideration is, what are the limitations of the right of appeal when a review is granted? We agree with the conclusions which

the other High Courts have adopted that Order XLIII, Rule 1(w), does not give a general right of appeal, but that it is controlled by Order XLVII,

Rule 7. See Hari Charan Saha v. Baran Khan 25 Ind. Cas. 903 : 41 C.k 746; Ali Akbar. v. Khurshed Ali (1905) A.W.N. 154 : 2 A.L.J. 465.; In

Sreenivasa Aiyar v. Nataraja Aiyar 28 Ind. Cas. 707 : 2 L.W. 366 this view was accepted in this Court.

Mr. Ramesam''s. contention is that even in this view, the reference to Rule 4 in Clause 7(1)(6) 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

Clause 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 5 Ind. Cas. 725 and Ali Akbar v. Khurshed Ali 27 Ind. Cas. (1905) 2 A.L.J. 465. 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 in Bombay and Persia Steam

Navigation Company Limited v. S.S. ""Zuari"" 12 B.k 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 holding 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 Reasut Hossein v.

Hadjee Abdoollah 2 C.k 131: 26 W.R. 50 : 1 Ind. Dec. 380 the Legislature does not contemplate the calculation of degrees of sufficiency. The

obvious intention of the Legislature is that the grounds which satisfied a Court that its own judgment requires re-consideration, should not be

subjected to adverse comment in the Court of Appeal. 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 not a ground which is open to the

appellant. At the same time, we must express the opinion that the order of the Subordinate Judge is very unsatisfactory. The only ground assigned

for granting the application is that the decree-holder was a woman, although the fact that she had two adult sons who conducted the execution

proceedings was known to the Judge. We dismiss the appeal. Under the circumstances of the case, we make no order as to costs.

An objection was taken to the grant of review on the ground that the Subordinate Judge was wrong in restoring the review petition when it was

dismissed for nonpayment of the batta. No petition questioning the restoration has been filed before us. That matter may have to be considered

when there is a petition before the Court. We dismiss the petition solely on the ground that no appeal lies on the ground taken before us.