Decided on January 22,1952



Sarjoo Prosad, J. - (1.) This application has been presented by the plaintiffs. It is directed against an order of Mr. Gobind Saran, District Judge of Champaran, reversing the decision in appeal of the learned Munsif of that place. It arises out of an application for review under order 47, rule 1, Civil Procedure Code, filed by the plaintiffs which was allowed by the learned Munsif in the following circumstances: The defendants 3rd party to the action out of which the proceedings arose had executed a 'zarpeshgi' deed in favour of defendants 1 and 2 of the 1st party in respect of survey plots 138, 169 and 176. Subsequently, in November 1942, the said defendants sold to the plaintiffs plot 138 only. The plaintiffs then instituted the suit for redemption of the mortgage in favour of the defendants 1st party subsisting on all the above plots, and also claimed mesne profits and costs. This suit was decreed in September 1947, and mesne profits were allowed to the plaintiffs in regard to plot 138 only which the plaintiffs had purchased from the defendants 3rd party. On appeal, however, the decision was reversed and the case was remanded with a direction that the defendants 2nd party, who were subsequent mortgagees, should be also made parties to the suit (they having been expunged earlier), and the suit should be decided in their presence. When the matter went back to the court below in May 1948, the defendants 3rd party, who were the mortgagors and who continued to be the owners of plots 169 and 176, applied to be transposed to the category of the plaintiffs. This application, however remained pending, and it appears that no orders were passed thereon, and the suit was eventually decreed in September 1948; but again the decree as to mesne profits was confined only to plot 138 which had been purchased by the original plaintiffs. The defendants 3rd party, therefore, filed the application for review. It may be noted that In disposing of the suit, the court observed as follows: "It is to be noted that the mortgagors would have been entitled if they had joined as co-plaintiffs, to mesne profits in respect of the remaining plots, but no prayer has been made." The learned Munsif accordingly held that the above passage clearly showed that while delivering judgment, he intended to decree the suit for mesne profits even in respect of the other plots in favour of the mortgagors, but he was unable to pass such a decree because the mortgagors had not applied to be co-plaintiffs. This the learned Munsif held was an error apparent on the face of the record inasmuch as the learned Munsif had failed to dispose of the application for transposition already filed by the defendants 3rd party. Had the application been allowed, and the defendants 3rd party been transposed to the category of the plaintiff, then on the strength of the judgment itself they would be clearly entitled to mesne profits in respect of the other plots also. He accordingly allowed the application for review and directed that plaintiffs 1 and 2 should get possession of plot 138 and the other co-plaintiffs (defendants 3rd party), the mortgagors, should recover possession of the other two plots 169 & 176 by ejecting the mortgagees, the defendants 1st party or the defendants 2nd party, whosoever might be in possession; and he also directed that these plaintiffs including the mortgagors should get mesne profits in respect of all the three plots under mortgage. The defendants 2nd party appealed to the District Judge who allowed the appeal.
(2.) Mr. D.N. Varma on behalf of the petitioners has contended that the appeal before the learned District Judge against the order in question was entirely incompetent, and, therefore, the learned District Judge had no jurisdiction to set aside the order in question. He points out that the order was not appealable because of the provisions of Order 47, Rule 7, Civil P.C., in which the right of appeal arises only under limited circumstances not applicable to the present case. Order 47, Rule 7 provides that an order rejecting the application for review shall not be appealable, but an order granting an application may be objected to on the ground that the application was in contravention of the provisions of rule 2 or of Rule 4 of the said Order, and such an objection may be taken at once by an appeal from the order granting the application. It is rightly contended that in this case the application was neither in contravention of Rule 2 of the Order nor in contravention of Rule 4. That being so, apparently the learned District Judge had no jurisdiction to entertain the appeal.
(3.) For the opposite party Mr. Mehdi Imam has strongly urged that an order granting a review was appealable under Order 43, Rule 1 Clause (w) C. P. Code. It seems to be, however, well settled that the said provisions of Order 43 are con-trolled by the provisions of Order 47, Rule 7. 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. Mr. Imam, however, con-tends that the application for review should have been rejected by the court inasmuch as there was no sufficient ground for review at all, and inasmuch as the court allowed the application which was in contravention of the provisions of Sub-rule (1) of Rule 4 of Order 47, it must be assumed that the order would be appealable. The simple answer to this argument is that Sub-rule (1) of Rule 4 of Order 47 contemplates that the court shall reject the application where it appeared to the court that there was no sufficient ground for review. Here the court had not done so, and evidently the court had held that there was a good ground for allowing the application for review. Consequently, such an order on the face of it cannot fall under the sub-rule in question.;

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