KALI PRASANNA GUHA CHOUDHURI Vs. BHAGABATI DEBYA

JUDGEMENT

(1.) The facts, so far as they are material for the disposal of this Rule, are as follows: One Chinta Moni Chakrabarti died leaving as his only heir his daughter Soudamini Debya. The petitioners purchased the interest inherited by Soudamini in certain properties left by Chinta Moni. On the 18 of September 19.6, the petitioners as plaintiffs sued for partition and one of the defendants in that suit was Bhagabati Debya--the widow of Chinta Moni's brother. On the 13 of September 1917, the plaintiffs obtained a preliminary decree and, on the 21 of March 1918, they obtained the final decree. Daring the pendency of that suit, Bhagabati Debya set up a Will alleged to have been executed by Chinta Moni, under which she claimed a life-interest in the pro parties in suit and, on the 10 of February 1917, she applied for Letters of Administration of that Will, She was granted Letters of Administration on the 26 of March 1918, that is to say, five days after the final decree in the partition suit. Against the order granting Probate, there was an appeal to the High Court, and the grant was confirmed on the 30 of July 1919. Prior to the confirmation by the High Court on the 30 June 1919, Bhagabati applied for a review of the judgment decreeing the partition suit. This application for review wan granted and an appeal against the order granting review was unsuccessful, and against these orders the present Rule has been obtained.

(2.) The first ground taken on behalf of the petitioners is that the application for review was time-barred, it not having been made within 90 days of the date of the final decree. There would be considerable force in this contention had the lower Courts held that the application was within time. But the basis of their decision was that, though the application was time- barred, sufficient cause had been shown by Bhagabati to justify the admission of the application under Section 5 of the Limition Act. Sitting in revision, I am unable to hold that the lower Courts had not jurisdiction to consider that Bhagabati was justified in waiting until the decision of the High Court before making her application for review. That is what she intended to do. But she made it before that decision, because the petitioners in this case were taking out execution of the decree which they had obtained. But it appears to me that this Rule must succeed on the second ground taken. The application for review was made to a Judge other than the Judge who passed the decree, and it is contended that there had been no discovery of new and important matter or evidence as is referred to in Rule 1 of Order XLVII, Code of Civil Procedure, so as to give the lower Courts jurisdiction to grant the review. As already pointed out, the grant of Letters of Administration, which was treated by the opposite party as a new and important matter or evidence, was not made until after the final decree in the partition suit. In the case of Kotaghiri Venkata Subbamma Rao V/s. Vellanki Venkataruma Rao 24 M. 1 at p. 10 : 27 I.A. 197 at 205 : 4 C.W. N. 725 : 10 M.L.J. 221 : 2 Bom. L.R. 771 : 7 Sar. P. C.J. 678 (P.C), their Lordships of the Judicial Committee held that when an application was made for review of a decree on the discovery of new and important matter and evidence, the ground of amendment must, at any rate, be something which existed at the date of the decree, and this has been held to make a judgment delivered after the decree sought to be retrieved no material on which an application for review can be based [see Kumar Sarat Kumar Roy V/s. Sripati Chatterjee 50 Ind. Cas. 119 : 23 C.W.N. 242 at p. 247]. The learned Judge of the lower Appellate Court has relied on the decision in the case of Jadav Chandra Maulik V/s. Manik Sardar 51 Ind. Cas. 652 : 29 C.L.J. 813. as an authority for holding that a review of judgment can be made on the ground of a judgment of the High Court which was discovery of a new and important matter. But he has overlooked the difference in that case that the judgment of the High Court, which was held to be .a good ground for review, was delivered before the judgment which was sought to be reviewed, I must hold, therefore, that when the application for review was made, the facts alleged therein were not sufficient to give the learned Judge of the Court of first instance jurisdiction to review the judgment of his predecessor.

(3.) The result is that this Rule is made absolute and the orders of the lower Courts granting the review are reversed. The petitioners will get their costs in this Court and in the lower Courts, the hearing-fee in this Court being assessed at one gold mohur.