SUBRAHMANYA AYYAR AND ANR. Vs. GOVINDASAMI MOOPANAR AND ORS.
LAWS(MAD)-1952-2-38
HIGH COURT OF MADRAS
Decided on February 26,1952

Subrahmanya Ayyar And Anr. Appellant
VERSUS
Govindasami Moopanar And Ors. Respondents

JUDGEMENT

Subba Rao, J. - (1.) THIS second appeal raises a question in regard to the scope of an enquiry under Order 47, Rule 8, Civil P. C. On 8 -4 -1929, defendant 1 executed a mortgage -deed for himself and as guardian of his undivided minor brothers, defendants 2 and 3 in favour of the plaintiffs' father. The plaintiffs filed O. S. No. 138 of 1945 on the file of the Court of the District Munsif, Valangiman, for recovery of the amount due under the said mortgage. The defendants raised various picas. They also claimed that the debt was liable to be scaled down under the provisions of the Madras Agriculturists' Relief Act. The District Munsif gave a decree, but scaled down the mortgage amount under the provisions of the Madras Agriculturists' Relief Act. The defendants preferred an appeal, and the District Judge by judgment dated 30 -6 -1947 held that a sum of Rs. 150 paid on 30 -12 -1930 was an unappropriated payment. In regard to the payment of Rs. 300 on 30 -5 -1938 he held that it was properly appropriated towards the principal and interest due on the date of payment. He negatived the plea of damdupat. In the result with a slight modification he confirmed the decree of the District Munsif. On 27 -9 -1947 the plaintiffs filed an application under Order 47, Rule 1, Civil P. C. for reviewing the judgment and decree of the District judge on the ground that there was an error on the face of the record. The error according to, the petitioners was that the District Judge by mistake stated that Rs. 350 was the principal, whereas the parties agreed that the principal amount was Rs. 453 -6 -0. On 3 -12 -1947 the District Judge passed the following order: "As there is an error apparent on the face of record, the review application is allowed. But since the actual working out involves arguments, the appeal itself will be reopened and reheard under Order 47, Rule 8, Civil P. C." Arguments were heard subsequently, and judgment was delivered on 20 -1 -1948. The learned Judge again refused to apply the principle of damdupat. He substituted the figure of Rs. 453 -6 -0 in the place of Rs. 350 representing the principal amount due on 1 -10 -1937. In addition, he held that a sum of Rs. 300 paid on 30 -5 -1938 had to be appropriated only towards interest payable after 1 -10 -1937 and the balance, in reduction of the principal. He gave a decree for a sum of Rs. 453 -6 -0 at 61/2 per cent per annum only from 1 -10 -1937 to 30 -5 -1938 when he received payment of Rs. 300 and thereafter subsequent interest on Rs. 172 -3 -0 from 30 -5 -1938 till the date of the plaint. The result is that though the review application was filed for correcting an obvious error on the face of the record in regard to the principal amount, the learned Judge reviewed his judgment in respect of the appropriation of a sum Of Rs. 300 paid on 30 -5 -1938. The plaintiffs preferred the above appeal against the decree of the learned District Judge.
(2.) MR . Jagadisa Aiyar, learned counsel for the appellants contended that a Court cannot review its own judgment so as to go beyond the scope of the application for review. Alternatively he argued that even if the District Judge had such jurisdiction, in the present case he should have, in his discretion, confined the scope of the rehearing and also the relief to that prayed in the review petition filed by the appellants. The relevant provision governing the situation is Order 47, Rule 8, Civil P. C. It reads : "When an application for review is granted, a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit." Before I express my view on the question raised, it will be convenient to consider the cases cited by the learned counsel. The various stages in a review application have been stated by Venkatasubba Rao J. in - - 'Pakiri Muhammad Rowther v. Swaminatha Mudaliar', : AIR 1938 Mad 573 (A), in the following manner: "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 heard 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 reopened, there is a fresh decree." The scope of the enquiry at the third stage is stated In - - 'Bhugwandeen Doobey v. Myna Baee',, 11 Moo Ind Ap 487 (B). That case turned upon the corresponding provision, Section 378 of Act 8 of 1859. Though there was no discussion the Judicial Committee held that notwithstanding the terms of Section 378, Civil P. C., it was competent to the Judges by whom the order allowing the application for review was made to enlarge those grounds on an oral application by including moveables, if satisfied that there was a proper case on the merits for so doing. In - - 'Hurbans Sahye v. Thakoor Purshad',, 9 Cal 209 (C), a Bench of the Calcutta High Court had to consider the question whether when a review application was allowed the Court was bound to rehear the whole case under Section 630 of Act 10 of 1877. Section 630 corresponds to Order 47, Rule 8 of the present Code. Mitter J. stated the position thus: "It has been contended that, it the review be granted on a particular ground, we are bound to rehear the whole case under Section 630, Civil P. C.; but the words "or make such order in regard to the rehearing as it thinks fit" in the section in question, leave it to our discretion either to rehear the whole case or any particular point that seems to us fit. The observation of the Judicial Committee in - - "11 Moo Ind App 487 (B)' supports this view." The other Judge, Maclean J. agreed with the aforesaid observations.
(3.) A careful and analytical treatment of the subject is found in - - 'Bhaniram Rathi v. : AIR1927Cal21 . Page J. after considering the various cases cited before the Bench observed as follows at p. 24 : "The conclusion at which I have arrived, as the result of my investigation, is that at the time when an application for review of a judgment on the ground of the discovery of new and important evidence is before the Court it is open to the Court under Order 47, Rule 8 to determine whether the case shall be reheard in part or in its entirety. In the absence of any special directions in that behalf by the Court granting the review the whole case is reopened, and the Court is not restricted to a consideration of the particular point upon which the application for a review succeeded." The same view was expressed by King J. in - -'Gangaraju v. Venkatarayulu Naidu, : AIR 1943 Mad 235 (E). In that case the auction -purchaser at a court sale deposited the money required including poundage and that amount remained in Court for four years. On an application filed by the judgment -debtor the sale was set aside. The auction -purchaser took back the purchase -money with interest, but he was informed that he should apply to the Government if he wished to obtain refund of the poundage. The decree -holder applied for review on the ground that he should not have been called upon to pay interest. The Court granted the review end passed an order refusing to call upon the decree -holder to pay any interest to the auction -purchaser. The Court further held that one half of the poundage should be paid by the decree -holder to the auction -purchaser, and that in respect of the other half he should apply to the Government. The decree -holder filed a revision to the High Court and contended that the Court was not justified in directing half the poundage to be returned by the decree -holder, though there was no application either by himself or his opponent for any modification of the order in so far as it related to the poundage. The learned Judge in dealing with that contention observed at page 236 : "It seems to me that this contention must fail inasmuch as Rule 8 of Order 47 clearly lays it down that when the Court grants an application for review it may at once "rehear the case". That surely means that it may hear the case in full and "deal with every point which it is necessary to consider before passing a fresh order.";


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