LAWS(PVC)-1939-8-137

HARBALLAV PRASAD CHOWDHURY Vs. JAGBALLAV PRASAD CHOWDHURY

Decided On August 24, 1939
HARBALLAV PRASAD CHOWDHURY Appellant
V/S
JAGBALLAV PRASAD CHOWDHURY Respondents

JUDGEMENT

(1.) This appeal arises out of proceedings in a partition suit instituted so far back as in the year 1917. Without going into the long history of the case, it will be enough to state that in pursuance of the preliminary decree which was passed in 1919, a commissioner was appointed who eventually submitted his report on 26th April 1935, According to his findings, the plaintiffs were entitled to get various sums from the defendant who was the karta of the joint family. The defendant filed objections to the report and those were disposed of by the Subordinate Judge by his order dated 17 January 1936. Accepting the commissioner's report in part, he passed a final decree. Before the final decree was actually prepared, the defendant made an application on 17 February 1936 for review of the judgment dated 17 January 1936.

(2.) In the application certain items in the commissioner's report were specifically referred to and it was prayed that "those items should be reconsidered with a view to rectify the mistakes and inequities that have crept in owing to a misapprehension." This application was presented to and heard by the same Judge who passed the final decree on 17 January 1936. He granted the application by his order dated 5 March 1937 and by the same order he passed a fresh final decree. The present miscellaneous appeal is directed against that order in so far as it granted the application for review.

(3.) The substantial point urged in this appeal is that there were no sufficient grounds upon which the learned Subordinate Judge could review the final decree which was passed on 17 January 1936. In support of his contention Mr. Mitter has relied upon the decision of the Privy Council in Chhajju Ram V/s. Neki AIR (1922) PC 112 where their Lordships laid down that "any other sufficient reason" in Order 47, Rule 1, Civil P.C., means a reason sufficient on grounds at least analogous to those specified immediately previously. In the present case however the learned Subordinate Judge has held that there was an error apparent on the face of the record or something analogous to it. If that is so, certainly the review was permissible under the express provisions of Order 47, Rule 1. But let us assume that the Subordinate Judge was wrong in his view of the facts with which he was dealing. The question is whether in this appeal we can examine the propriety of his decision. Indeed under Order 43, Rule 1(w) an order granting an application for review is appealable; but Order 47, Rule 7 specifies certain limits within which such an appeal can be entertained. The relevant portion of Order 47 Rule 7 runs as follows: 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) in contravention of the provisions of Rule 2, (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.