JUGESHER MISRA Vs. KIRIT SINGH

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Gaya granting an application for review. The appellant brought a suit for partition against the respondent. In that suit a preliminary decree for partition was passed on 18th January 1938. By that decree costs ampunting to Rs. 121-13-0 were allowed to the plaintiff. The final decree was passed on 12 July 1938. There was an appeal from this final decree by the defendant to the District Judge of Gaya. This appeal was dismissed with costs on 24 November 1939. By this decree Rs. 205 was awarded as costs to the plaintiff-respondent. Against this appellate decree the defendant preferred a second appeal to this Court which was summarily dismissed under Order 41, Rule 11, Civil P.C., on 5 March 1940. On 9 April 1940, the defendant filed an application in the Court of the District Judge of Gaya for review not only of the decree for costs passed by him in the appeal on 24 November 1939, but also of the decree for costs embodied in the preliminary decree. This application for review was eventually allowed by the successor of the District Judge who had passed the decree. Hence this appeal by the plaintiff. So far as the costs awarded by the preliminary decree are concerned, it is quite obvious that no review could lie in the Court of the District Judge. There was no appeal from the preliminary decree and that decree became final. If that decree was sought to be reviewed the application should have been filed before the Court which passed that decree. On this ground alone, the order allowing the application for review in regard to the costs awarded by the preliminary decree must be set aside.

(2.) As regards the costs awarded by the appellate decree passed by the learned District Judge, the application was not maintainable.

(3.) Under Order 47, Rule 1, Civil P.C., a person can ask for review of a decree from which an appeal is allowed but from which no appeal has been preferred. But in this case in fact an appeal was preferred and the appeal was dismissed by this Court. Therefore the learned District Judge could not entertain any application for review of the decree which had been passed by him. On the merits also, the ground given by the learned District Judge for allowing the application for review is obviously wrong. The learned District Judge says that in partition suits parties should bear their own costs up to the preliminary decree. In the first place, this is by no means correct. The question would depend upon the nature of the dispute raised in the partition suit. In the second place, the appeal was not against the preliminary decree but against the final decree. The appeal was dismissed and the learned Judge who heard that appeal considered that it was a fit case in which costs should be awarded to the respondent. On an application for review his successor was not justified in holding that the order for costs passed was wrong. In the circumstances I have no hesitation in holding that the decision of the learned District Judge is entirely wrong. The application for review should have been dismissed. I would accordingly allow the appeal and set aside the order passed by the learned District Judge. The appellant will be entitled to costs in this Court as well as in the Court below, hearing fee in this Court one gold mohur and in the Court below Rs. 8. Harries, G.J. I agree.