SIRKAR Vs. VELAYUDHAN PONNAN AND ORS.

JUDGEMENT

(1.) THE following two questions have been referred for decision by a Full Bench:

(2.) IS the prohibition contained inR.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?

(3.) THE number of the Order of the Travancore Code of Civil Procedure relating to review is XLV which corresponds to Order XLVII of the Indian Code. The number and language of the rules in the Order are similar. Mr. Sankara Subba Iyer who wrote the leading judgment took the view that thoughR.2 does not apply to applications for review of judgments in the High Courts, as they are expressly excluded by that Rule, the principle thereof would apply, and applying that principle, he reached the conclusion that the two learned Judges who disposed of the case having issued notice upon the applications for review, they could be heard and disposed of by a Bench of Judges to which neither of them is a party. The learned Chief Justice, Mr. Abraham Varghese, was of the view thatR.5 not having expressly mentioned that the disability of Anr. Judge or Judges not participating in the disposal of the case to hear the review is limited to a period of six months on account of the absence of an expression like "thereafter" or "within the period" following the words "no other Judge or Judges shall hear the same." The ground for the decision depended upon by the third learned Judge Mr. Justice Ramakrishna Iyer is thatR.2 is applicable to the High Courts as well as to other Courts. The grounds depended upon by the learned Judges in the Full Bench decision not having appealed to my learned brethren, they referred the aforesaid two questions for the decision of a Full Bench of this Court as the question involved is important and of very frequent occurrence. The rulings of the erstwhile Travancore High Court and of the erstwhile Cochin High Court would not be binding upon this Court which is a new Court but would merely be persuasive precedents.