BHARGAVI AMMA Vs. SANKARA PANICKER

JUDGEMENT

(1.) On the 4th of December 1954 the plaintiff decree holders applied by E. P. 826 of 1954 for delivery of the property in suit in execution of the redemption decree they had obtained. Notice was ordered on this application for the 13th December and was returned with the endorsement that it was refused and therefore affixed. Service was presumably held sufficient and an ex parte order for delivery was made on 13-12-1954. Delivery was actually effected the following day, and, on 15-12-1954, the 5th defendant came forward with the application out of which the present appeal arises. In this application he prayed for:

(2.) The main complaint of Mr. Narayanan Nair for the appellant is that the first court has, in effect, passed a final order dismissing the execution application without actually rehearing it as required by O.47 R.8 of the Civil Procedure Code. But, according to Mr. Govindan Nair for the respondent, that stage has not been reached, and all that the court has done is to make an order under O.47 R.4(2) granting the respondent's application for review. In other words, only the second of the three stages of a review described by Sir Lawrence Jenkins C. J. in Vadllal v. Fulchand (ILR XXX Bombay 56) has been completed, and the third stage, namely, the stage of rehearing the case on the merits, that is to say, the stage contemplated by O.47 R.8 has still to commence. But, the moment an order granting an application for review is made, the original decree or order sought to be reviewed is vacated and there is thus a reversal giving rise to a claim for resolution under S.144 of the Code, or, if the view be taken that there is no reversal or variation within the meaning of that section, then under S.151.

(3.) If that be the correct position, namely, that no final order has been passed on the decree holder's application for delivery and that that application is yet to be reheard, the appellant can have no grievance on the score mentioned since there will be a rehearing of the application on the merits. Mr. Narayanan Nair is content to accept this position which I think is correct. Although the merits of the objections taken by the respondent to the delivery were so elaborately considered as to give the impression that they were being considered not merely for the purpose of ascertaining whether he had a prima facie defence, there was no rehearing of the execution application and no order dismissing that application. It is true that there was no note made as required by rule 8 of O.47 of the grant of the application for review, and no posting of the execution application for rehearing. But then I find a note made by the court in the execution application to the effect that it was to be brought up after the disposal of the application for review. It is therefore fairly clear that the court has not passed on to the third stage, and has not, as a consequence of its allowing the review application, passed a fresh order on the execution application.