RAM SURAT Vs. SHITLA PRASAD

JUDGEMENT

(1.) THIS first appeal from order is directed against an order where by the lower appellate Court allowed a review application and set aside its own judgment and decree passed earlier in civil appeal No. 33 of 1976. In the said appeal, the defendants were the appellants and the plaintiffs were the respondents. The appeal was dismissed by the lower appellate Court. Thereafter, the defendants moved an application seeking a review of the judgment and the same, as stated above, was allowed by the lower Appellate Court. The plaintiffs, feeling aggrieved, have come up in the instant appeal and in support and opposition thereof, I have heard the learned counsel for the parties. The counsel for the defendants- respondents has raised an objection about the maintainability of the appeal. It may be stated that the lower Appellate Court allowed the review petition on the ground of error apparent on the face of the record. It is contended before me that in view of the provisions contained in O. 47 R. 7 C. P. C. the right to file an appeal against an order granting a review petition is limited and is not an unlimited right. I would like to make it clear that this case is governed by the provisions of O. 47 R. 7 C. P. C. as they stood before their recent amendment by the Civil Procedure Code (Amendment) Act, 1976 passed by the Parliament, O. 47 R. 7 C.P.C. in its relevant part before the aforesaid 1976 Amendment stood in the following manner:- "7. (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was:- (a) (** ** **) (b) in contravention of the provisions of R. 4, or (c) after the expiration of the period of limitation prescribed therefore and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit. (2) Where the application has been rejected in consequence of the failure of the applicant to appear he may apply for an order to have the rejected application restored to the file and where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party." It is not disputed before me that cl. (c) will not be applicable here and the only dispute is with reference to the applicability and scope of cl. (b). It is contended by Sri Santosh Kumar, learned counsel for the appellant, that if a review petition is allowed in contravention of O. 47 R. 4 sub-rule (1) C.P. C. then an appeal shall lie. On the other hand, Sri Chaturvedi, learned Counsel for the defendants respondents has contended that on a true interpretation of the aforesaid cl. (b) of O. 47 R. 7 sub-rule (1), the appeal can only lie when there is a contravention of any of the two provisos of O. 47 R. 4, sub-Rule (2). A reference has been made to the decided case law on this controversy. The important cases are as follows:- (1) AIR 1961 Andh Pra 201 (FB) (M. Agaiah v. Mohd. Abdul Kareem); (2) AIR 1954 Hyd 166 (FB) (Geddam Sita Ram Reddy v. Yerrasani Venkat Varada Reddy); (3) AIR 1946 Cal 530 (FB) (Smt. Sarajubala v. Aswini Kumar Ghosh); (4) AIR 1959 Ker 154 (P. K. Sathianesam v. Sankaram Nadar); (5) AIR 1953 Trav Co. 441 (Francis v. Ouseph C.M.); (6) AIR 1951 Mad 927 (Mrs. Anantha Lakshmi Ammal v. The Hindustan Investment and Financial Trust Ltd.); (7) AIR 1926 Bom 121 (Daso Keshav Panchbhai v. Karbasappa Karriyappa); (8) (AIR 1964 All 516 (Krishna Banwari Lal v. Behari Lal Sri Krishna); (9) AIR 1934 P C 213 (Bisheshwar Pratap Sahi v. Parath Nath); (10) AIR 1930 All 106 (Banaras Bank Ltd. v. Pirya Das Pitam Chand); (11) AIR 1925 All 395 (Gudri Singh v. Parshottam Das); (12) AIR 1925 All 552 (Madhori Saran v. Parvati); (13) AIR 1918 All 229 (Khursheed Alam Khan v. Rahmat Ullah Khan); (14) AIR 1920 All 112 (Sunder v. Habib Chik);

(2.) THESE cases are undoubtedly in conflict in regard to the true interpretation of O. 47 R. 7 (1) (b). In Chitaley' s commentary on Civil P. C. (8th Edition) in Note 7 to O. 47 R. 7, the conflict has been noticed. However, it should be observed that so far as this court is concerned, there is no conflict and the line of decision is almost in uniformity. The decisions of this Court noticed above undoubtedly support Sri Chaturvedi and, in these circumstances. Sri Santosh Kumar, learned counsel for the appellant, made a prayer that the controversy be referred to a larger Bench. In this connection, he drew attention to AIR 1964 All 516 (supra) where the learned Single judge did refer such a controversy to a larger Bench. However, the larger Bench was not called upon to decide the said controversy.