MT BITANA Vs. SHANKER LAL

JUDGEMENT

(1.) Shanker Lal, plaintiff-respondent, instituted a suit in his capacity as a cosharer against Mt. Bitana, the lambardar, for his share of profits under Section 164, Act 2 of 1901. The suit not having been contested, an ex parte decree was passed in favour of the plaintiff on 30 September 1926. No appeal was preferred from this decree. No application was made under Order 9, Rule 13, Civil P. C, for setting aside the ex parte decree. An application for review of judgment was made on 4th January 1927. This review was granted on 30 May 1927.

(2.) Under the Civil Procedure Code no appeal lies from an order rejecting an application for review of judgment, but an order granting an application for review is expressly appealable: vide Order 10, Rule 1 (w), Civil P.C. For reasons unexplained, no appeal was preferred by Shanker Lal from this order. In the meantime the trial of the suit proceeded on the merits and a decree was passed on 29 August 1927. In the view of the trial Court the plaintiff was entitled to a decree upon actual collections, but not on gross rental. Shanker Lal preferred an appeal to the learned District Judge from the decree, dated 29 August 1927. He set forth as a ground of objection in the memorandum of that appeal that the Assistant Collector had acted illegally in the exercise of his jurisdiction in granting a review by his order dated 30 May 1927.

(3.) The powers of an appellate Court to entertain an appeal from an order granting the review are limited. Order 43, Rule 1 (w), must be read subject to the limitations imposed by Order 47, Rule 7 (1), Civil P.C. The learned District Judge held that review had been granted by the trial Court upon insufficient grounds. It therefore reversed the order dated 30 May 1927 and restored the ex parte decree which had been passed on 30 September 1926.