Chopra, J. - (1.) THIS appeal by Mst. Jangir Kaur is directed against an order of the Additional District Judge, Faridkot granting review of the order dated 2 -4 -51 made by his predecessor S. Kulbhushan dismissing an appeal in default. From a decree of the Sub Judge, 2nd Class Faridkot passed against them, Bant Singh and Ors. presented an appeal to the court of District Judge, Bhatinda, which was transferred for disposal to the Additional District Judge, Faridkot. The appeal was admitted and notices were ordered to be issued to the Respondents. Thereafter, several adjournments were given to effect service on the respondents . On 31 -7 -50 one of the Plaintiffs and Respondents made an application under Order 22 Rule 9(2), Code of Civil Procedure to the effect that Kahla Singh, a Defendant in the suit, died during the pendency of the suit but his legal representatives could not be brought on the record be -cause the applicant did not know of his death earlier, and therefore prayed that in his place his Sons Kartar Singh and Sardar Singh be impleaded as Respondents to the appeal. On 13 -3 -91 Section Kulbhushan, in whose court the Appeal was pending, ordered notice of the application dated 31 -7 -50 to be issued to Kartar Singh and Sardar Singh and fixed the case for -4 -51. On 2 -4 -51 the Judge dismissed the appeal in default because none of the Appellants their counsel was present. The order further stated that Sardar Singh and Kartar Singh Sons of Kahla Singh had refused service.' On 2 -7 -51 Bant Singh made an application under Order 47, Rule 1,Code of Civil Procedure for review of the order dated 2 -4 -51. After giving reasons for non -appearance of the Appellants, their Mukh -tiar or their counsel in the application the applicant stated that Sardar Singh and Kartar Singh sons of Kahla Singh deceased had in fact not been served and the process server wrongly reported that they refused to accept service, and prayed that the order of dismissal in default be set aside and the appeal revived. The application was admitted by Section Kulbhushan on the day it was presented and notices were ordered to be issued to the Respondents. In the meantime he was transferred and the application came up for hearing before his successor Section Ranjit Singh Sarkaria. The learned Judge observed that the appeal itself was not fixed for hearing on 2 -4 -51 but was to come up that day for return of the notices to the persons required to be joined as legal representatives of Kahla Singh and for considering their objections, if any. The notices also were not in the actual appeal but were in respect of the application by the Respondents under Order 22, Rule 9(2) Code of Civil Procedure It was, therefore, held that the appeal could not be dismissed in default. The learned Judge consequently set aside the order dated 2 -4 -51 and restoring the appeal ordered it to be heard on merits. The Respondents to the said appeal have come in appeal to this Court.
(2.) SHRI Gurbachan Singh, learned Counsel for the Respondents, raises a preliminary objection that this appeal against an order of re -view passed on an application under Order 47, Rule 1, Code of Criminal Procedure, could lie and be heard only upon the grounds set out in Order 47, Rule 7. After hear -ing the parties at some length I am of opinion that the preliminary objection is a good one and should prevail. An order Under Rule 4 of Order 47 granting an application for review can be appealed against as provided by Order 43, Rule l(w), but Order 47 Rule 7 enacts that in such an appeal only the three grounds of objections specified in that rule can be raised. When both the rules are read together it follows that there is no appeal even from an order granting a re -view in cases other than those Specified in Rule 7 of Order 47, Code of Criminal Procedure Now the grounds specified in Rule 7 are that the application was (1) In contravention of the provisions of Rule 2(2) In contravention of the provisions of Rule 4, and, (3) presented after the expiration of the period of limitation prescribed therefore and without sufficient cause. It is admitted that the conditions number (1)and (3) above have no application to the present case It is, however, contended that the application other provisions of Rule 2. u under Order 47, Rule 2 an application for review on one of the two grounds mentioned therein, may be made even to the successor of the Judge who made the order, but an application on any other ground permissible by Order 47 Rule 1 must be made to the same Judge and not to his successor It further provides that such an application may, if the Judge who passed the decree Or made the order has ordered notices to issue under Rule 4(2), proviso (a), be disposed of by his successor. In the present case the application was not on the ground of discovery of any new and important matter or evidence or on the existence of a clerical or arithmetical mistake or error apparent on the face of the order and, therefore, it could only be presented to the Judge who passed the order, but if it was once Presented and admitted by him and notice was ordered to be issued on the application it could be disposed of by his successor. The application for review and setting aside the order of dismissal purported to have been made on the basis of a mistake or error apparent on the face of the record or for some such other sufficient reason. It was thus permissible under Order 47, Rule 1 Code of Civil Procedure and could be disposed of by the successor because it was already entertained by the Judge who passed the order. It was, therefore, within the competence of the successor to grant review and set aside the order and occasioned no contravention of the provisions of Rule 2, which could be taken exception to in this appeal. The contention of Shri Lachhman Dass is that the application did not in so many words state that the appeal on the day when it was dismissed in default was only fixed for hearing an application of a Respondent and for return of the notices issued thereon and, therefore, the appeal Could not be dismissed in default and that this ground was for the first time taken before the successor when the application for review came up for hearing before him. The argument is that since the ground was not specifically urged in the application which was admitted and on which notice to the Respondents under Rule 4 was ordered to be issued by S. Kulbhushan, it could not be. raised before his successor under Order 47, Rule 2 Code of Civil Procedure I do not think it can be contended that an application for review contravenes provisions of Order 47, Rule 2 simply because each one of the facts on which the review is granted by the successor was not Stated in the application which was presented to the Judge who made the order and on which the notice under Rule 4, Sub -rule 2 proviso (a) of Order 47 was issued by him. The phrase any such application' in Rule 2 simply means an application by which a review is prayed for and it is not addressed to the details of facts that should be stated therein. It is not meant to provide that the successor cannot take into consideration facts which, though patent on the record, were not specifically mentioned in the application. In this case the fact that notices were issued to Kartar Singh and Sardar Singh and that the process server had wrongly reported that they had refused to accept service was mentioned in the application. The contention that the application did not also state that the appeal was fixed on the particular day simply for return of the notices, or that it could not, therefore, be dismissed in default, though ingenious, has failed to impress me and I am inclined to think that the review application could not be rejected by the successor simply for that reason. In the case of a suit dismissed for de - -fault it was held by a F. B. of this Court in 'Mohal Lal v. Jai Lal, 1 PLR 212 (A) that the Plaintiff had every right to apply for review and the fact, that it was open to him to have the order of dismissal set aside under Order 9, Rule 4, could not take away that right from him. The only condition that an application for review must satisfy is that it must fall within one of the three grounds enumerated in Sub -rule (1) of Order 47, Rule 1. It is, therefore, not disputed that an application for review in the present case was competent even though the applicant had not taken recourse to Order 41, Rule 18 for readmission of the appeal. The learned Judge was within his right to grant the review because of the mistake apparent on the face of the record and I do not feel convinced that there was any contravention of the provisions of Rule 2. The order, therefore, cannot be objected to in this appeal.
(3.) ON merits also I do not see any force in the appeal. Order 41, Rule 12 provides that if an appeal is not dismissed in limine and has been admitted the appellate court 'shall fix a day for hearing the appeal under. Rule 17 of Order 41 the court can make an order that the appeal is dismissed if on the day fixed or on any other day to which the hearing may be adjourn -ed, the Appellant does not appear when the appeal is called on for hearing. The Appellant thus must have due notice of the date of hearing of his appeal and where no date has been fixed for the hearing of, an appeal the appellate court has no power to dismiss the appeal for default. As already observed the appeal be -fore the Additional District Judge was fixed for return of notices on and hearing of an application by one of the Respondents to implead the legal representatives of a deceased Respondent and not for hearing the appeal itself; if the Appellants or their counsel did not put in their appearance on that day the appeal could not be dismissed for default. The error was apparent on the face of the record and the person aggrieved could apply for review of the order and get the mistake rectified. No other point has been urged by the counsel for the Appellants. The appeal is consequently dismissed with costs. Record shall at once be returned to the Additional District Judge, Faridkot, for decision of the appeal in accordance with law. The parties through their courseware directed to appear in his court;