CHINNADORAI ALIAS LOGANATHAN MINOR Vs. R DORAISUNDARAM
HIGH COURT OF MADRAS
CHINNADORAI ALIAS LOGANATHAN
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Rajamannar C.J. -
(1.) This is an appeal under Clause 15 of the Letters Patent against an order of Rajagopalan J. dismissing an application by the appellant for review of the order made by him on 26th April 1950 directing a preliminary decree for partition to be passed. The learned Judge says it was virtually a consent order. But that circumstance does not make a material difference so far as the point on which we think this appeal should be disposed of is concerned. In our opinion, we think that no appeal lies against the order.
(2.) The application for review was filed evidently under Order XLVIT, Rule 1. Civil Procedure Code. Order XLVII, Rule 7 of the Code clearly Rays that an order rejecting an application for, review is not appealable. Obviously, that should conclude the matter. It was, however, contended by Mr. Gopalakrishnan on behalf of the appellant that in spite of the express provision in Order XLVII, Ruls 7, the order in question would be a "judgment" within the meaning of Clause 15 of the Letters Patent as interpreted by the Full Bench in --'Tuljaram Rao v. Alagappa Chettl', 35 Mad 1 (A) and that therefore an appeal would lie. In -- 'Achayya v. Ratnavel', 9 Mad 253 (B) it was held by a Bench of this Court (Muthuswami Aiyar and Parker JJ.) that Clause 15 of the Letters Patent is controlled fay Section 629 of the then Civil Procedure Code (corresponding to Order XLVII, Rule 7 of the present Code), and therefore an appeal is not maintainable against an order rejecting an application for review of judgment. With great respect we follow the decision and hold that the present appeal is incompetent. Even otherwise, we have no hesitation in holding that the order in question is not a Judgment within the meaning of Clause 15 of the Letters Patent. The order did not put an end to the suit, but had allowed the suit to proceed in its usual course towards a final decree.
(3.) The appeal is therefore dismissed with costs.;
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