JAGAR NATH PROSAD SINGH Vs. RAMAVATAR SINGH

JUDGEMENT

(1.) This appeal is directed against an order granting an application for review of judgment. The Subordinate Judge heard an appeal ex parte and decreed it on the 13th January 1909. On the 5th April 1909, the respondent, who was absent at the original hearing, applied for review of judgment. The application was granted on the 2nd June, the original judgment was discharged and the appeal ordered to be re-heard. This appeal is directed against that order and in support of it, it has been argued that the review has been granted on insufficient grounds.

(2.) A preliminary objection has been taken by the respondent to the competency of the appeal as it is not based on any of the grounds mentioned in Order XLVII, Rule 7 of the Code of 1908. In answer to this contention, the learned Vakil for the appellant has argued that an unrestricted right of appeal is conferred by Order XLIII, Rule (1) Clause (w) of the Code, which provides for an appeal against an order under Rule 4 of Order XLI granting an application for review. In our opinion, the appeal is clearly incompetent.

(3.) It is not disputed that under Section 629 of the Code of 1882, f o which corresponds Rule 7 of Order XLVII of the Code of 1908, an appeal against an order granting a review could be maintained only on the three grounds specified in the section. This is conclusively established by the cases of Bombay and Persia Steam Navigation Co. v. S.S. Zuari 12 B. 171; Daryai Bibi v. Badri 18 A. 44; Har Nandan v. Behari 22 C. 3; Baroda Churn v. Gobind Prashad 22 C. 984; Purna Chandra v. Nil Madhub 5 C.W.N. 485; Mahabir v. Nathni 1 C.W.N. 338; Munni Ram Chowdhry v. Bishen Perkash Narqin 24 C. 878. The learned Vakil for the appellant has, however, suggested that the right of appeal has been widened under the Code of 1908, because under the Code of 1882 there was no provision corresponding to Clause (w) Rule 1 of Order XLIII. This contention is clearly erroneous. That clause has to be read along with Rule 7 of Order XLVII of the Code as otherwise the restrictive provisions contained in Rule 7 would become absolutely nugatory. The object of the Legislature plainly was to provide explicitly that an order granting a review is appealable. This supplies the omission in the Code of 1882 under which the right of appeal was given only by implication and also makes it plain that a second appeal is barred under Section 104, Sub-section (2). Gopal Das v. Alaf Khan 11 A. 383: Than Singh v. Chundun Singh 11 C. 296; Papayya v. Chelamayya 12 M. 125. We hold accordingly that this appeal is incompetent and must be dismissed with costs. The hearing-fee is assessed at one gold mohur.