STATE Vs. VELAYUDHAN PONNAN

JUDGEMENT

(1.) THE following two questions have been referred for decision by a Full Bench:- (1) Where the two conditions contemplated by R. 5 of O. XLVII, C.P.C. are satisfied in respect of an application for review, can it be heard by any Judge or Judges who had not participated in the judgment or order sought to be reviewed? (2) Is the prohibition contained in R. 5 applicable to all the different stages of the hearing of the application for review or is the prohibition limited to the stage of the preliminary hearing of the application when notice may or may not be issued on the application?

(2.) THE facts giving rise to the reference are these:- A.S. 475/1114 on the file of the erstwhile Travancore High Court was disposed of, allowing the appeal in part, by a Division Bench consisting of Mr. Justice K. Sankara Subba Iyer and Mr. Justice C.Madhavan Pillai, on 30.4.1117. THE 1st respondent, the State of Travancore presented petition No. 49 on 26.9.1117 and the second respondent presented petition No. 57 on 29.7.1117 for review of the judgment. Both the petitions came up for orders before the same learned Judges on 21.12.1117 when they ordered notices to issue to the opposite party, namely the appellants. THE petitions however do not appear to have been posted or come up for hearing before the said learned Judges of whom Mr. Justice Madhavan Pillai retired from service on 20.9.1120 and Mr. Justice Sankaran Subba Iyer retired on 32.12.1123, nor do the petitions appear to have been posted for hearing before any other learned Judge of the erstwhile Travancore High Court at any time. Even after the integration of the two States and the constitution of this High Court for the "United State", the petitions do not appear to have been posted for some time. THEy came up before my learned brethren, Mr. Justice Sankaran and Mr. Justice Gangadhara Menon, sitting as a Division Bench, in July 1951 when they made the aforesaid order of reference to a Full Bench.

(3.) THE answers to the questions referred to the Full Bench depend on the true interpretation of R. 5 of O. XLVII which is as follows:-