Pakkiri Muhammad Rowther vs L. Swaminatha Mudaliar

Venkatasubba Rao, J.—Pandrang Row, J., dismissed the second appeal, giving effect to an objection, in limine, that the decree from which

it was filed, was superseded by a fresh decree that was passed subsequent to the filing of the appeal. The question to decide is whether there was

in law a new decree passed, which had the effect of discharging the original decree. We regret to say we are constrained to differ from the learned

Judge''s view. If the course of the proceedings be carefully followed, it will be seen that nothing was done, which could be said to have had the

legal effect of vacating the decree, from which the second appeal was filed.

The facts relevant to the question at issue may be briefly stated. The plaintiff, alleging that he became the purchaser of the suit property, sued the

defendants for possession. Their defence was that some amount was due to them, and the trial Court after over-ruling the plea, gave judgment for

the plaintiff. It must be mentioned that the property, as was admitted, was held in two distinct shares; one by the first defendant and the other by his

brother the second and the latter''s son the third. The first defendant alone appealed, without impleading defendants 2 and 3 the owners of the

other part. The District Judge, giving effect to the defendant''s contention, reversed the Munsiff''s judgment and dismissed the suit. It is from his

order of dismissal that the second appeal referred to above was filed. The appellate Judge, it will be seen, committed an obvious mistake; he could

have dismissed the suit, even on his own finding, against the first defendant alone, whereas he dismissed it in toto. Thereupon the plaintiff applied

for a review of the District Judge''s decree and put forward-two grounds in support of his application : first, that subsequent to the date of the

Munsiff''s judgment but prior to that of the appellate judgment, there was a decision given in a certain suit which negatived the defendant''s right to

the unpaid purchase money, by whatever name, it might be called and secondly, that the dismissal of the suit as against the second set of

defendants was an error apparent on the face of the record.

Before proceeding further, we may mention the relevant dates : (1) the lower appellate Court''s decree was passed on 7th August, 1930; (2) the

review application was made on 12th September, 1930; (3) the second appeal was filed on 9th January, 1931; and (4) the order on the review

petition was passed on 14th November, 1931.

We may at the outset refer to the valuable observations of Jenkins, C.J., as to the three stages of a review application. The first is the ex parte

stage when the Court may either reject the application at once or may grant a rule calling the other side to show cause why review should not be

granted. In the second stage the rule may either be admitted or rejected. If the rule is discharged, the case ends then and there; if on the other hand

the rule is made absolute, then the third stage is reached. The case is then neared on the merits and may result in a repetition of the former decree

or in some variation of it. In either case, the whole matter having been re-opened, there is a fresh decree Vadilal v. Fulchand I.L.R.(1905) 30

Bom. 56. This analysis by Jenkins, C.J., of the three successive stages is of fundamental importance, as observed by Mookerjee, J., in Gour v.

Nilmadhab (1922) 36 C.L.J. 484.

The question that arises is whether the order to be presently referred to, on the review petition, was one passed in the second or in the third

stage. As already said, the review was based on two grounds. So far as the petition prayed that the order dismissing the suit should be confined to

the first defendant alone, the relief asked for was granted. To this extent, though the Judge purported to act under the review provisions of the

Code, he must in truth be deemed to ''have used his powers u/s 152, Civil Procedure Code.

Notice was served on defendant 1 only but the order he made affected. defendants 2 and 3 prejudicially and it is inconceivable that he would

have made it without notice, to them under the review chapter. No adverse order can be made under the review sections without notice to the

party affected. On the other hand, the error which was rectified was, as the Judge later realised, due to an accidental slip and u/s 152 that could be

rectified as a matter of course without notice. So much then for the second ground on which the review petition was founded. Then turning to the

first ground, the Judge held that the judgment relied on, by way of fresh evidence, was previously available and ought to have been produced at the

hearing. Holding that there was no sufficient cause for its non-production in time, he rejected that part of the petition. To use the Judge''s words, he

refused to grant review which (as will be evident from Rules 4, 7 and 8 of Order 47) meant that that he dismissed the application in the second

stage. As pointed out by Jenkins, C.J., in the case already cited, the hearing of the rule in the second stage may involve to some extent an

investigation into the merits. That does not affect the character of the order made, for, in each case the Court has to decide, at what stage has the

order been made and what is its effect. In the present case, as in Vadilal v. Fulchand I.L.R.(1905) 30 Bom. 56 the order made must be deemed as

one passed in the second and not in the third stage. This being so, there is no reason for holding that a fresh decree, was passed superseding the

original one. If the rule is discharged in the second stage, ""the parties are relegated to, and still rest on the old decree"". Vadilal v. Fulchand I.L.R.

(1905) 30 Bom. 56 and Gour v. Nilmadhab (1922) 36 C.L.J. 484 .

It may not be out of place to mention here that it becomes sometimes difficult, when the review is refused, to ascertain whether the order is one

made in the second or in the, third stage. Under Order 47, Rule 8, when an application for review is granted (which means when the rule is made

absolute), the Court has the option either to re-hear the case at once or adjourn it to a future date for hearing. But the Court is required, on making

the order absolute, to make a note thereof in the register. Where this rule is not complied with and the ultimate order is that the petition is refused,

some ambiguity is introduced and the matter becomes difficult to decide. It is incumbent on the Courts to appreciate the difference between the

2nd and the 3rd stages and not leave the question in obscurity. Turning to the present case, the Judge made no note that the review was granted,

and why should we hold, in spite of it, that he in fact granted the review? In other words, why should it be held, especially when the indications are

the other way, that he infringed a mandatory provision?

Going back to the second ground for a moment, the correcting of art error arising from an accidental slip does not bring into existence a fresh

decree. This has been laid down in Pydel v. Chathappan I.L.R.(1890) 14 Mad. 150 :

where the learned Judges pointed out that in the contemplation of law, an amended decree must be taken as in force from the date of the original

decree,, as there is a well-founded distinction between a case of amendment and a case of novation or substitution. Brojo Lal Rai Chowdhury v.

Tara Prasanna Bhattacharji (1905) 3 C.L.J. 188 .

In the result, we must hold that the second appeal was perfectly competent and that the preliminary objection ought not to have been allowed to

prevail. The Letters Patent Appeal is allowed and each party will bear his costs incurred in the High Court. The second appeal will now have to be

heard and we direct that its hearing shall be expedited. The court-fee paid on the memorandum of Letters Patent Appeal will be refunded.