JANKIRAM COMPANY Vs. CHUNILAL SHRIRAM

JUDGEMENT

(1.) THIS is a revision application against an order of the First Class Subordinate Judge at Sholapur dismissing the petitioner's application for a review of an order dismissing darkhast No.1632 of 1936 on the ground that it was barred by limitation. His case is that he mentioned in the said darkhast that he had previously filed darkhast No.353 of 1932 and omitted to mention therein that he had also filed a second darkhast No.978 of 1933, and that owing to this omission the Court dismissed dar-khast No.1622 of 1936 as being time-barred, having been filed more than three years after the decision in darkhast No.353 of 1982. The application was opposed by the judgment-debtor on the ground that prior to the filing of the application for review the applicant had preferred an appeal against the order made in darkhast No.1632 of 1936. Following the decision in Balling v. Devasthan Fund, Gondhale (1930) 33 Bom. L.R. 378 the lower Court has dismissed the application with costs.

(2.) THE applicant filed an appeal against the decision of which he now wants a review on August 7, 1937. One of the grounds of appeal as stated in his memorandum of appeal was : THE lower Court failed to see that the endorsements on the decree showing that a previous darkhast No.978 of 1933 was filed and decided within three years before the present darkhast.

(3.) A line of decisions commencing with Nanabhai Vallabhdas v. Nathabhai Haribhai (1872) 9 Bom. H. C. R 89 and ending with Pandu v. Devji (1883) I.L.R. 7 Bom. 287 had decided that where there had been an appeal there still might be a review of the; judgment of the Court against whose decree the appeal was preferred, provided the appeal to the higher Court was withdrawn. Nanabhai v. Nathabhai was a decision under Act VIII of 1859 of which Section 376 provided that any person considering himself aggrieved by a decree of a Court of original jurisdiction from which no appeal shall have been preferred to a superior Court, or by a decree of a District Court in appeal from which no special appeal shall have been admitted by the Sadar Court, may under the circumstances, there indicated apply for a review of judgment by the Court which passed the decree. The case concerned a decree of a District Court in appeal. It was held that the propen course was to permit the appellant to withdraw his appeal and thus regard it as never having been admitted ; and it was further directed that on the permission to withdraw the appeal being granted the order by which the appeal had been admitted should itself be cancelled. This case was followed in Narayan bin Sidoji v. Davudbhai valad Fatehbhai (1872) 9 B. H. C. R. 238. At the date of the decision in Pandu v. Devji the procedure in force was under, Act X of 1877 of which Section 623 provided that any person considering himself aggrieved by a decree or order from, which no appeal was preferred might apply for a review of judgment. In spite of the change of language from the earlier provision (Section 376 of Act VIII of 1859) it was held that it was not going further than the decision in Nanabhai v. Nathabhai to say that by the same process the appeal which was withdrawn might be treated as, having never been preferred. Thus a fiction was created that the appeal which was withdrawn must be treated for purposes of Order XLVII, Rule 1, as though no appeal had been preferred.