ALGU RAM Vs. BISHUNATH

JUDGEMENT

(1.) This application purporting to be for modification of an order passed by A. P Srivastava, J. on 2-8-1962 was placed before our brother D.S. Mathur, who by his order dated 28-8-1963 has referred it to a Bench for decision of the question whether it can be disposed of by a single Judge or must be disposed of by a Bench. The question arose because of the retirement of A.P. Srivastava. J. who had passed the order sought to be modified. Ch. V Rule 12 of Rules of Court is to the effect that "an application for the review of a judgment shall be presented to the Registrar, who shall... lay the same... before the Judge or Judges by whom such judgment was delivered... If such Judge or Judges... be no longer attached to the Court, the application shall be laid before the Chief Justice who shall, having regard to the pro visions of Rule 5 nominate a Bench for the hearing of such application" Sri G.D Srivastava contended that his application is for review of a judgment governed by Ch. V Rule 12 and that it must be laid for disposal before a Bench to be nominated by the Chief Justice because Mr. Justice A.P. Srivastava is no longer attached to this Court. We disagree with this contention because we have no doubt that the order passed by Mr. Justice A.P. Srivastava is not a Judgment and that this application is not for review.

(2.) By the order, Mr. Justice Srivastava simply stayed execution of a decree during the pendency of a second appeal; he did not decide any question of right of any party. Whether execution of the decree should be stayed or not was a matter at his discretion and was not a matter of right of the appellant. When he stayed it he did not decide any question of the appellant's right or the right of the respondents to execute the decree. In any case he did not adjudicate upon the rights of the parties to the second appeal. An order cannot be a judgment unless it decides a question of rights of parties in the suit or action.

(3.) The application itself does not purport to be an application under Order 47, C. P. C. for review and is not stamped as an application under Order 47. In the heading "Section 151" C. P. C. is mentioned and not "Order 47" and the prayer in the application is: "It is therefore respectfully prayed that the interim order...... may be modified and this Hon'ble Court may pass such other order as it may deem fit in the ends of Justice" The grounds also do not make out a case for review; it is not alleged that there was any apparent error on the face of the record or that the applicant could not with due diligence place certain matter before Mr. Justice A.P. Srivastava The reason for the modification is that the applicant's counsel was absent on the date on which Mr. A. P. Srivastava passed the order and that consequently certain matters could not be placed before him This ground does not make out a case for review under Order 47, C. P. C. On an application for review under Order 47 Court-fee is pay able depending upon the valuation of the plaint but here the application has been stamped as an ordinary application and not an application for review of a judgment. It is, therefore, clear that the application is not for review at all.