PUDIPEDDI LAXMI NARASAMMA Vs. BENU NAIDE

JUDGEMENT

(1.) THIS is a plaintiff's application in revision against the order of the learned Munsif of Berhampur, dated 21-7-55 refusing to exercise the cowers under Order 47, Rule 2 of the Code of Civil Procedure. The facts giving rise to the present application are as follows: The plaintiff's original suit was transferred to the court of the first additional Munsif who delivered an ex parte judgment on 30-9-54. The plaintiff in that suit claimed title through one Londa Naik who died leaving his son Arbhito and widow Kami. Defendant-2 who ultimately was expunged from record on a memo, filed by the plaintiff, purchased at auction sale the interest of Arkhito in the execution of a decree. The plaintiff appears to have purchased the said interest from defendant-2 on 22-7-17 and delivery of possession was prayed for. The learned Additional Munsif passed a decree in respect of half of the suit property in favour of the plaintiff holding that defendant-2 could not purchase the entire interest of Londa as the decree was executed against his son Arkhito only; while kami the widow had the other half of the interest under the Hindu Women's Rights to Property Act. Thus, the interest of the widow Kami had not passed to the plaintiff's vendor. The plaintiff by his petition in the court below sought a review of the judgment on the ground that Arkhito was sued in the execution proceedings against him as the Manager of a Joint family, and that the Hindu Women's Rights to Property Act was extended to agricultural lands in Orissa by Orissa Act, V of 1944. The purchase in court auction admittedly was on 10-1-1944. The Act referred to above received assent of the Governor on 8-4-44, that is, about three months thereafter. Thus, it is obvious that Kami had not acquired any interest as the had no right, because Orissa Act V of 1944, had not been enforced by that time. It was contended that this was an error apparent on the face of the record. I may mention here that the Additional Munsif's Court which passed the impugned decree was abolished and the present application was, therefore, filed, in the court of the regular Munsif and the petitioner contended that the Succeeding court being in charge of the first Additional Munsif's Court can review the judgment.

(2.) DEFENDANT-1 filed a counter to the above petition or the plaintiff denying the allegations and contended that this review petition is not maintainable as the succeeding judge has no power, it not being an error apparent on the face of the record and that the petition was barred by limitation.

(3.) THUS, the facts as emerge prior to the filing of this petition are that the plaintiff's vendor Sanyasi obtained a decree in the small cause court suit No. 317 of 1940 against Arkhito only and in E. P. no. 226 of 1946, he purchased the suit-lands through court-sale on 10-1-1944. Orissa Act V of 1944 extending the Hindu women's Rights to Property Act to agricultural holdings came into force on 8-4-44. Hence, Kami had not acquired any interest by the time the plaintiff's vendor purchased at the court-sale. Thus, the widow Kami having no interest and Londa's son Arkhito having the full interest in the suit-property, the plaintiff's vendor purchased the same and accordingly, the plaintiff is entitled to the full interest in the disputed property. The preliminary question that was raised in the court below was whether the succeeding court had the powers of a review under Order 47, rule 2, of the Civil Procedure Code. The learned Munsif who heard the said petition came to the conclusion that he had no such power, and accordingly, dismissed M. J. C. No. 9 of 1955. It is against this order that the present application is directed.