SHAMSHER ALI Vs. JAGARNATH THIRAIN

JUDGEMENT

(1.) We are invited in this appeal to set aside an order granting an application for review of judgment. The appellant applied on the 6th December 1910 for reversal of an execution sale held on the 9th November 1910. The sale was set aside on the 6th December, upon payment of the sums mentioned in Rule 89 of Order XXI of the Code of 1908. The auction purchaser was dissatisfied with this order and preferred an appeal to the District Judge. The appeal was dismissed on the 6th April 1911. On the 16th May following an application was made for review of this order; it was however, presented before the Subordinate Judge as the District Judge was absent from the station. The Subordinate Judge received the application, registered it and directed notices to issue to the opposite party. Later on, the District Judge returned and passed various orders relating to the postponement of the case and analogous matters. Before the application could be heard on the meris, the learned District Judge unfortunately died His successor took up the matter on the 6th January 1912 and set aside the order of the 16th December 1910; three days later, in accordance with this order, the sale was confirmed. It is contended on behalf of the appellant that the order passed on review was without jurisdiction, because it was in contravention of Rule 2 of Order XLVII of the Code of 1903, which requires that an application for review of an order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is mentioned in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the order, shall be made only to the Judge who made the order sought to be reviewed; but any such application may, if the Judge, who made the order, has ordered notice to issue under Rule 4, Sub-rule (2), proviso (a), be disposed of by his successor. In our opinion, this contention is well founded.

(2.) It has been argued on behalf of the respondent that as the Judge was absent from the district, it was competent to the Subordinate Judge, who was in charge of the duties of his office, to receive the application and issue notice thereupon under Rule 4 Sub-rule 2, proviso (a) of Order XLVII. This contention is clearly unfounded. The policy of the Legislature is that, in matters of this description, the application should be received and considered by the Judge who made the original order. It was never intended that the application should be considered by his successor or by some person in charge of the duties of his office. If this view were not accepted, the result would be that practically an appeal would be heard against the original order by the successor-in-office of the Judge who passed the order. In this view, the order of the Court below cannot be supported and this appeal must be allowed.

(3.) But it has been argued on behalf of the respondents that this appeal is incompetent, first, because it was preferred after the sale had been confirmed on the 9th January 1912; and secondly, because the final order is not liable to be challenged by way of appeal.