SEEMAKURTY ACHYUTAM Vs. SEEMAKURTI KASI ANNAPURNAMMA

JUDGEMENT

(1.) The question that arises for consideration is as to whether an appeal lies under Clause 15. Letters Patent against the judgment of Jaganmohan Reddy, J. in C. M. P. No. 7781 of 1961. The appellant herein filed C. M. P. No. 7781 of 1961 to excuse the delay in filing an application under Order 47, Rule 1. Civil P. C. to review the judgment and decree of Subba Rao C. J. and Jaganmohan Reddy, J. in Appeal No. 182 of 1953. The learned Judge held that there were no sufficient reasons to excuse the delay in filing the review application and consequently dismissed the application. As against this judgment of Jaganmohan Reddy J., the Letters Patent Appeal is filed to this Court.

(2.) Two objections were taken by the office as to the maintainability of the appeal. The first objection was that tinder the provisions of Order 47, Rule 7, Civil P. C. the order of the Court rejecting the review application is not appealable. The second objection was that as the order was passed by Jaganmohan Reddy J. under Order 47 Rule 5, Civil P. C. on behalf of the Bench of which he was a member, the order is not open to appeal. Having carefully heard the arguments of Sri Kesava Rao on behalf of the appellant and Sri T. Veerabhadrayya on behalf of the respondents, we are quite clear that the second objection should prevail.

(3.) Order 47 Rule 5, Civil P. C. runs as follows: "Where the Judge or Judges or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application and no other Judge or Judges of the Court shall hear the same." As Subba Rao C. J. has been appointed as a Supreme Court Judge, the application was rightly posted under the terms of Order 47 Rule 5, Civil P. C. before Jaganmohan Reddy, J. Order 47, Rule 7 enacts that an order of the Court rejecting the application shall not be appealable. The order dismissing the application passed by Jaganmohan Reddy J. is on behalf of the Court or the Bench that originally heard the appeal. As against the judgment of the Bench of the Court, there can be no further appeal to another Division Bench of this Court. This view is supported by the decision of the Calcutta High Court in Kailash Chandra v. Revati Mohan, 21 Cal WN 652: (AIR 1917 Cal 88). The appeal was originally heard by Teunon and Smither JJ. The review application was heard by Teunon J. and it was rejected by him sitting alone. As against his judgment an appeal under Clause 15, Letters Patent was filed. Woodroffe J. delivering the judgment on behalf of the Division Bench held that no appeal lay. The learned Judge observed as follows: