MAHARAJAH SRI SRI RAJAH SAHEB MEHARBAN DHOSTHAN RAJA SRI RAO SWETACHALAPATHI RAMAKRISHNA RANGA RAO BAHADUR VARU, RAJAH OF BOBBILI Vs. MARADANA VENKU NAIDU

JUDGEMENT

(1.) THIS is a petition for the revision of a judgment of the Subordinate Judge of Chicacole by which he set aside an order made by the District Munsiff of Parvatipur reviewing a previous order of his made in E.A. No. 690 of 1944, in O.S. No. 574 of 1918 by which he dismissed that application on the ground that it was barred by limitation. The petitioner filed a decree in this suit (O.S. No. 574 of 1918), and in execution of it brought the property to sale in E.P. No. 9 of 1939. The sale was confirmed on the 18th of April, 1940, and in E.A. No. 656 of 1941. the petitioner applied for delivery of the property. An order for delivery was made, and according to the record, delivery was actually effected on the 25th of July, 1941. Thereafter the petitioner filed another application, E.A. No. 690 of 1944, praying again for the delivery of the property. This petition was dismissed on the ground that it was barred by limitation by reason of the fact that it was filed more than three years after the confirmation of the sale, and it is not denied that the application fell to be dismissed for this reason. The application out of which this civil revision petition arises, E.A. No. 1438 of 1944, was then made for a review of the order in E.A. No. 690 of 1944 on the ground that the application on which that order had been passed was unnecessary because delivery had actually been effected in E.A. No. 656 of 1941 on the 25th of July, 1941, and it was prayed that the application should be dismissed not on the ground that it was barred by limitation but on the ground that it was unnecessary in view of the fact that delivery had already been effected. The District Munsiff, as already stated, reviewed his previous order, but the learned Subordinate Judge allowed the appeal to him, and restored the order passed in E.A. No. 690 of 1944 dis -missing that application on the ground that it was barred by limitation.

(2.) ON merits there can be no question that the learned Subordinate Judge was right and that the application for review should never have been allowed. If the property was actually delivered to the petitioner on the 25th of July, 1941, and he remained in possession of it, no object could be served by having the order, dismissing E.A. No. 690 of 1944 on the ground that it was barred by limitation, set aside. If the petitioner had taken delivery and was in possession, his application, E.A. No. 690 of 1944, was no doubt otiose even if in time; but the order dismissing it could not affect him adversely. Moreover, it was a correct order in the circumstances, and there was accordingly no ground for reviewing it. It is argued, however, by learned Counsel for the petitioner that it was not open to the learned Subordinate Judge to reverse the decision of the District Munsiff on merits and that, in fact, no appeal from the decision of the District Munsiff lay. Order 47, Rule 7 of the Civil Procedure Code provides that:

(3.) RULE 1 of Order 47 gives as a ground for an application for review of judgment by an aggrieved person the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. The proviso to Sub -rule 2 of Rule 4 of Order 47 makes no mention of the exercise of due diligence, but it is clear that the words " was not within his knowledge or could not be adduced by him when the decree or order was passed or made " are implicitly qualified by the words " after the exercise of due diligence ". In the affidavit filed by the petitioner there is no attempt at all to show that at the time when he filed E.A. No. 690 of 1944, he was unaware of the fact that the property had already been delivered to him in spite of the exercise of due diligence on his part. On the contrary, the reason given for the surprising ignorance of the previous delivery of the property is that after the delivery there had been some changes in the office staff. Moreover, not only is no adequate reason for the want of know -ledge of the previous delivery given in the affidavit, but the question of the exer -cise of due diligence or want of knowledge by the petitioner was not considered at all by the District Munsiflf. Accepting the view that strict proof means not sufficiency of proof but the formalities of proof in accordance with law it seems to me impossible to say that those formalities have been complied with by an affidavit which does no more than baldly state that something was not known to the petitioner at the date when the order was made in respect of which the review petition had been filed without offering any adequate explanation of his ignorance of what, on the face of it, should have been perfectly well known to him. In my opinion, in the present case the affidavit which was the only evidence adduced by the petitioner does not amount to strict proof of the allegation that the fact of pre -vious delivery was not within his knowledge at the time when the order in E.A. No. 690 of 1944 was passed. It is plain that with the exercise of reasonable diligence the evidence with regard to the fact that delivery had already been effected could have been adduced by him in the course of the hearing of E.A. No. 690 of 1944. In that view, the order made by the District Munsiff of Parvatipur reviewing his previous order was in contravention of the provisions of Rule 4 so that the judgment of the Subordinate Judge setting aside that order was correct, although not altogether for the reasons given by him.