Thakur Singh vs Dinanath Sah

Agarwala, J.—The opposite party obtained against the petitioner and his father in the Court of the Munsif of Motihari a money decree for Rs. 1,497. The decree directed that this amount was realizable from the joint family property. The Munsif who passed the decree had jurisdiction up to Rs. 2,000. By the time the decree- holder applied for execution, the pecuniary jurisdiction of the Munsif, to whom it was made, was Rs. 1,000 only. The execution case was therefore transferred to the Subordinate Judge who, on the application of the decree-holder, attached certain property. The petitioner raised an objection that the property attached was not a joint family property but had come to him from his maternal grand-father by inheritance and was therefore his exclusive property. The Subordinate Judge upheld this objection by his order dated 26th January 1933.

Thereafter the decree-holder instituted Title Suit No. 78 of 1933 for a declaration that the disputed property was a joint family property and was liable in execution of his decree. In this suit, the present petitioner filed certain documents which had not been available to him at the hearing of his objection under Rule 58 but on which he now relied in the suit for the purpose of proving his assertion that the property was his exclusive property. The suit was decreed on 11th June 1934, but was dismissed on appeal by the defendant on 18th March 1935. A second appeal to this Court was preferred by the plaintiff decree-holder. It was dismissed summarily under Order 41, Rule 11 on 12th August 1935. The learned Judge who dismissed the second appeal pointed out that as the objection which had been filed by the present petitioner raised a question between the decree-holder and one of the judgment-debtors, it fell within Section 47, Civil P. C, and not under Order 21, Rule 58, and therefore that the remedy of the plaintiff-decree-holder against the order upholding the objection was by way of appeal and not by way of suit. Thereafter on 5th September 1935, the decree-holder filed Miscellaneous Appeal No. 101 of 1935 u/s 47 of the Code against the order of 26th January 1933 upholding the present petitioner''s objection. As the appeal was obviously time-barred, an application was also made to the Court u/s 5, Lim. Act, to condone the delay in filing the appeal.

An application was made to the appellate Court by the present petitioner to take into consideration the additional documents on which he had relied in the suit but which had not been available to him at the hearing of the objection. The appellate Court condoned the delay but declined to receive the additional evidence. The appellant thereupon applied for leave to withdraw the appeal and pursue his remedy by way of review. The Appellate Court permitted the appeal to be with, drawn. An application was then made by the decree-holder on 3rd February 1936, for review of the order of 26 th January 1933. This was made to the Munsif of Motihari and not to the Subordinate Judge who had passed the order. It was dismissed on 6th June 1936, and an application in revision against the order of dismissal was dismissed by this Court on 21st September 1936. The learned Judge who disposed of the application held that the Munsif to whom the application was made had no jurisdiction to entertain it. Thereafter, on 9th October 1936, the decree-holder applied to the Subordinate Judge of Motihari for review of the order of 26th January 1933. As this application was time barred, an application was made to the Court to condone the delay in view of the circumstances narrated above. The Court condoned the delay by its order dated 13th January 1937 and now proposes to consider the application for review of its order of 26th January 1933. Against that order the judgment-debtor has moved this Court. The learned advocate who has appeared for him has challenged the order on the ground that the Subordinate Judge had no jurisdiction to entertain the application for review and on the further ground that the application was barred by limitation. With regard to the point of jurisdiction, the learned advocate for the petitioner referred to Order 47, Rule 1, which is in these terms:

Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred, and who, from the discovery of new and important matter or evidence which ... was not within his knowledge ... at the time when the decree was passed or order made ... may apply for a review of judgment to the Court which passed the decree or made the order.

The learned advocate argues that as in fact Misc. Appeal No. 101 of 1935 was preferred against the order of 26th January 1933, Clause (a), Rule (1), Order 47 is a complete bar to the maintainability of the application for review. That contention raises the question as to what is meant by the clause, "but from which no appeal has been preferred". On behalf of the opposite party it is contended that when an appeal is withdrawn, it must be taken that it is as if an appeal has not been preferred. Reliance was placed on a decision of the Allahabad High Court in Lala Hardeo Prasad and Others Vs. Ganga Sahai and Others, where a Division Bench held that an appeal which has been withdrawn must be treated as if it had never been preferred within the meaning of Order 47, Rule 1. For the petitioner reference was made to the decision of a Division Bench of the Bombay High Court in Balling Vithaling v. Shri Devasthan Fund, Gondhale AIR 1931 Bom 232, in which it was held that where a party presents an application for review of judgment after he has preferred an appeal from the same, the review application is incompetent though the appeal is subsequently withdrawn. The learned Judges, however, pointed out that if a litigant who has filed an appeal wishes to apply for a review he may do so if he first withdraws his appeal. In the Bombay case the application for review was filed pending the hearing of the appeal itself. In the present case that difficulty does not arise for the application for review was not filed until after the appeal had been withdrawn. The learned advocate for the petitioner also referred to certain observations of the Privy council in Indrajit Pratap Sahi v. Amar Singh AIR 1928 PC 128 where their Lordships say;

In the present case an appeal had been preferred and a review, therefore, was out of question; and the defendants took the only and proper course, namely, to apply to the High Court, which was in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27 of Order 41.

The learned advocate contends that this is an authority for the proposition that the proper course being to apply to the Appellate Court for the admission of additional evidence and that having been done, the application for review is barred. The observations of their Lordships, however, must be taken with reference to the facts of the case in which they were made, that is to say a case in which the appeal was not withdrawn but was disposed of in the ordinary course on its merits. In the same case and at the same page their Lordships went on to observe that "rules of procedure are not made for the purpose of hindering justice". It is on that principle that the Allahabad High Court held that oases which were followed in Lala Hardeo Prasad and Others Vs. Ganga Sahai and Others, had been decided. In the last mentioned case their Lordships observed:

The Courts have evidently felt that some remedy in law must be open to a litigant who has in good faith filed an appeal against the decree of a Subordinate Court and then discovers that materials have come to his knowledge sufficient to afford good ground for an application for review of the adverse decision.

In my view, therefore, the learned advocate''s contention that the Court had no jurisdiction to entertain the application for review fails. With regard to the question of limitation it was contended that the decree-holder was not entitled to exclude the period during which he was prosecuting Miscellaneous Appeal No. 101 of 1935. Reference was made to Sub-section 2, of Section 14, Lim. Act, which provides that:

In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of like nature, is unable to entertain it.

It is argued that the Court in which Miscellaneous Appeal No. 101 of 1935 was filed was a Court which had jurisdiction and, therefore Sub-section 2, of Section 14 has no application to the facts of the case. The Court below, however, appears to have condoned the delay in filing the present application not with reference to Section 14, Lim. Act, which is a section conferring upon a litigant a right to have certain time excluded in computing the period of limitation, but upon Section 5 which confers upon the Court a discretion to condone delay when in opinion of the Court there are sufficient grounds for doing so. It is under this section that the Court below has acted. The learned advocate for the petitioner, however, referred to certain decisions in which it was held that the pendency of a second appeal was not sufficient cause within the meaning of Section 5 for the filing of an application for review beyond the statutory period of limitation. Those cases, however, were not cases in which an appeal had been withdrawn. Furthermore, in revision, it is not the practice of this Court to interfere in the exercise of discretion by the Court below even when the exercise of that discretion is founded on a mistaken view of the law. The ground of limitation therefore also fails and the application is dismissed. There will be no order for coats.