SCARIA Vs. SCARIA & OTHERS

JUDGEMENT

(1.) ON the application of minor plaintiffs in the suit, the decree for mesne profits was reviewed by the trial court on the ground that the court failed to advert to provisions of the Limitation Act which would have enabled the court to grant mesne profits during the minority of the plaintiffs without restricting the same to three years. Defendants 1, 3 and 4 preferred a civil miscellaneous appeal against the order granting review and the District Judge of Ernakulam dismissed the same upholding a preliminary objection that the appeal was incompetent as there was no contravention of Rule 4 of Order XLVII, Code of Civil Procedure. Defendants 1, 3 and 4 have therefore preferred this Civil Revision Petition. Order XLIII, Rule 1(w) provides for an appeal from an order granting a review. Order XLVII, Rule 7(1) (as amended by Act LXVI of 1936) provides:

(2.) I am unable to accept the argument advanced on behalf of the petitioners. If the argument is accepted, it would mean that in every case in which an application for review is granted on what the appellate court considers as insufficient ground, an appeal will lie. What Rule 4(1) provides is that the Court shall reject an application for review where it appears to the court that there is not sufficient ground for review. "The Court in Rule 4 (1) means the court to which the application for review is made and not: the appellate court. Again, while clause (1) of Rule 4 provides for the rejection of an application for review where it appears that there is no sufficient ground, it is clause (2) which provides for allowing such applications. The reference in Rule 7 is to an order allowing an application in contravention of Rule 4 and this, it seems to me, applies only to orders under clause (2) of Rule 4.

(3.) THE Madras High Court did not decide this question in, the case reported in : A. I. R. 1951 Mad. 927. Their Lordships observed: