RAMAUTAR TIWARI Vs. JAGDISH SINGH

JUDGEMENT

(1.) This application is made on behalf of Ramautar Tiwari and other petitioners under the provisions of Order 47, Rule 1 of the Code of Civil Procedure, for review of the peremptory order passed by a learned Judge of this Court on the 22nd of September 1954, directing that deficit court-fee on the memorandum of appeal should be paid by the 20th of October 1954, failing which the Second Appeal would stand rejected without further reference to a Bench.

(2.) The application was placed for hearing in the first instance before Misra and Chaudhari, JJ., who felt that the matter required consideration of a larger Bench.

(3.) In support of this application Mr. Jaleshwar Prasad put forward the argument that the principle of the decision of the Division Bench reported in Mahanth Ram Das Chela v. Ganga Das, AIR 1956 Pat 20 (A), would not apply to this case because it must be taken that the Second Appeal was actually dismissed on the 21st of October 1954, and that was, therefore the date of the decree within the meaning of Order 7, Rule 11, read with Section 107 (2) of the Code of Civil Procedure. On this basis it was contended by learned counsel that there is a proper ground for review under Order 47, Rule 1, because the petitioners had sent the required money on the 10th of October 1954, and the petitioners were not responsible for the failure of the lawyer to deposit the amount in the High Court because he had gone away to Daltonganj. We are unable to accept the argument of learned counsel as correct. The peremptory order off Misra, J, was made on the 22nd of September 1954, and that is the date of the decree within the meaning of Section 2 (2) read with Order 7, Rule 11, Code of Civil Procedure. We do not accept the argument of, learned counsel that the date of the decree in this case is the 21st of October 1954, when the Second Appeal stood dismissed because of the default on the part of the petitioners to pay the deficit court-fee. If that view is correct, the principle of the decision in AIR 1956 Pat 20 (A), applies to this case. It was laid down in that case that the ground for review under Order 47, Rule 1, must be something which existed on the date of the decision or decree and that the rule did not authorise the review of a decree or decision which was right when it was made on the ground of the happening of some subsequent event. It was further held in that case that an application for review of a decree on the ground that the applicant was taken ill subsequent to the date of the decree would not lie. This view is supported by a decision of the Privy Council in Kotagiri Venkata Subbamma Rao v. Vellanki Venkatrama Rao, 27 Ind App 197 at p. 205 (B); in our opinion, the reasoning of the decision in AIR 1956 Pat 20 (A) is right. Applying that reasoning we hold that the petitioners in the present case have not made out any ground for review under the provisions of Order 47, Rule 1, Code of Civil Procedure.