SCARIA Vs. SCARIA & OTHERS
HIGH COURT OF KERALA
Scaria And Others
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(1.)ON the application of minor plaintiffs in the suit, the decree for mesne profits was reviewed by the trial court on the ground that the court failed to advert to provisions of the Limitation Act which would have enabled the court to grant mesne profits during the minority of the plaintiffs without restricting the same to three years. Defendants 1, 3 and 4 preferred a civil miscellaneous appeal against the order granting review and the District Judge of Ernakulam dismissed the same upholding a preliminary objection that the appeal was incompetent as there was no contravention of Rule 4 of Order XLVII, Code of Civil Procedure. Defendants 1, 3 and 4 have therefore preferred this Civil Revision Petition. Order XLIII, Rule 1(w) provides for an appeal from an order granting a review. Order XLVII, Rule 7(1) (as amended by Act LXVI of 1936) provides:
(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was - (a)..........
(b) in contravention of the provisions of Rule 4, or
(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause.
Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.
The question is whether Rule 4 of Order XLVII was contravened in granting the review.
Rule 4 of Order XLVII provides:
4(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.
(2) Where the court is of opinion that the application for review should be granted, it shall grant the same:
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 or order, 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 or made, without strict proof of such allegation.
It is urged on behalf of the petitioners that contravention of Rule 4 involves contravention of clause (1) or (2) of Rule 4 so that an appeal would lie if an application for review is granted on insufficient grounds. Reliance is placed on the decision of the Travancore -Cochin High Court in Cheeku Francis v. Kuruvilla Ouseph (1953 K. L. T. 527) which decision itself is based on certain observations in Ananthalakshmi Ammal v. The Hindusthan Investment and Financial Trust Ltd. (A. I. R. 1951 Mad. 927).
(2.)I am unable to accept the argument advanced on behalf of the petitioners. If the argument is accepted, it would mean that in every case in which an application for review is granted on what the appellate court considers as insufficient ground, an appeal will lie. What Rule 4(1) provides is that the Court shall reject an application for review where it appears to the court that there is not sufficient ground for review. "The Court in Rule 4 (1) means the court to which the application for review is made and not: the appellate court. Again, while clause (1) of Rule 4 provides for the rejection of an application for review where it appears that there is no sufficient ground, it is clause (2) which provides for allowing such applications. The reference in Rule 7 is to an order allowing an application in contravention of Rule 4 and this, it seems to me, applies only to orders under clause (2) of Rule 4.
(3.)THE Madras High Court did not decide this question in, the case reported in : A. I. R. 1951 Mad. 927. Their Lordships observed:
But we do not think it necessary to finally decide this question, because even assuming that an order permitting a review, that is to say, allowing the case to be reopened, is not by itself appealable, there is nothing to prevent an appeal being filed against the final order passed after a reconsideration.
With great respect I dissent from the view taken in Cheeku Francis v. Kuruvilla Ouseph (1953 K. L. T. 527) which is based on the above decision.
Nonadvertance to a positive provision of law in the judgment or order is an error apparent on the face of the record (see Narayanan v. Raman (1953 K.L.T. 216 (FB)). It has been held in a number of cases that when a review is granted on the ground of an error apparent on the face of the record, such an order is not appealable and is not covered by the provisions of Rule 7 of Order XLVII. Shidramappa v. Gurushantappa (A.I.R. 1929 Bom. 183), Kesho Ram v. Bhagwan Das ( : A. I. R. 1934 Lah. 575), Kailash Narain v. Raj Kumar (A. I. R. 1945 Oudh 183), and Ramfal v. Mangal (A. I. 1953 Pat. 208) are some of the cases upholding the above view. I follow these decisions and hold that the appeal from the order granting review in this case was incompetent. It follows that the decision of the lower appellate court dismissing the civil miscellaneous appeal is right and does not call for interference. The civil revision petition fails and is dismissed, but in the circumstances I make no order as to costs.
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