SUBA SINGH KURE SINGH Vs. NEKI KISHEN SAHAI

JUDGEMENT

(1.) THIS is an application for the review of our order passed in L. P. A. No. 94 of 1949. . The appeal was dismissed on the ground that it had not been properly filed. The appeal purported to be on behalf of Sube Singh and his two minor brothers through the guardianship of Sube Singh. It was brought to our notice that an officer of the Court had been appointed as guardian-ad-litem of the minors. He was not removed and Sube Singh was not substituted in his place. The appeal should therefore have been filed by the officer of the Court. Sube Singh was not the properly appointed guardian and so the appeal was dismissed not having been properly filed. It is this order of dismissal which is sought to be reviewed by the present petition.

(2.) A preliminary objection is taken by Mr. Daya Krishan Mahajan that no application for the review of an order passed in a Letters Patent appeal lies. He has drawn our attention to the wording of Section 114, Civil P. C. and two reported decisions of the Allahabad and Patna High courts respectively. In --Mt. Abhilakhi v. Sada Nand', 53 All 535, a Full Bencii of three Judges was constituted to consider this point. Two of the Judges took the view that no application for the review of an order passed in a Letters Patent Appeal could be made. Mukerji J. , however, dissented from this view. I have carefully considered the wording of Section 114, Civil P. C. , and am constrained to observe with great respect that the majority of the learned Judges constituting the Full Bench were not justified in holding that Section 114 does not apply to an order passed in a Letters Patent appeal. The question which the learned Judges considered was whether Section 114, Civil P. C. does or does not apply to Letters Patent appeals. The point for consideration, however, is a wholly different one, namely whether the wording of Section 114, Civil P. C. , covers an order passed in a Letters Patent appeal. Section 114 does not govern the procedure of appeals filed under the Letters Patent; it merely deals with the question of review. The section reads as follows : "section 114. Subject as aforesaid, any person considering himself aggrieved : (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which pass-ed the decree or made the order, and the Court may make such order thereon as it thinks fit. "

(3.) THERE can be no doubt that judgments passed in Letters Patent appeals are recognised by the code of Civil Procedure. Such orders are either appealable to the Supreme Court or not appealable and Section 109, Civil P. C. shows that appeals under the Civil P. C. are allowed from orders passed in Letters Patent appeals. Therefore it is clear that Section 114 (a) and (b) cover such judgments. A judgment passed in a Letters Patent appeal is either appealable to the supreme Court under the Civil P. C. or not so appealable. The fact that the Letters Patent appeal itself is filed under the provisions of the Letters Patent and not according to the procedure laid down in the Civil P. C. makes no difference whatsoever to the petition for review. All we have to consider is whether the judgment under review is appealable or not. If it is appealable, it falls under Section 114 (a) and if it is not so appealable it falls under Section 114 (b ). In my view, no other interpretation can be placed upon the wording of Section 114 and I am constrained to differ from the view expressed by the majority of the Allahabad Judges in the case referred to. The Patna case is -- 'inder Mahton v. Ham-kishun Missir', AIR 1931 Pat 409. In this case courtney-Terrell C. J. held, following the Allahabad High Court that no application for the review of an order passed in a Letters Patent appeal lay. I have carefully considered the reasoning given - by the learned Chief Justice but I find myself unable to accept his interpretation of Section 114, Civil P. C There are decisions of the Bombay and Madras High courts to the contrary, vide -- Ratanchand Khimchand v. Damji Dharsey', AIR 1927 Bom 232 and -- Venkata Subbarayudu v. Govinda Krishna Yachendrulu Varu', 40 Mad 651.