NARAYAN RAYAJI KULKARNI Vs. RANGO RAMCHANDRA KULKARNI

JUDGEMENT

(1.) THIS is an appeal against an order by the First Class Sub-ordinate Judge of Dharwar granting a review of an order made determining mesne profits in execution proceedings. The facts are that the plaintiff obtained a decree for partition in 1922 awarding him a one-third share in the property with mesne profits, which was confirmed by the High Court in 1925. In 1927 the plaintiff applied to the lower Court to determine the mesne profits under Order XX, Rule 12. The defendant put in a written statement. Certain issues were framed, evidence recorded, and the Subordinate Judge determined the amount due for mesne profits in July 1930. But a month later the amount found due was corrected and reduced by about Rs. 300 on the ground that there had been a miscalculation. Thereafter the defendant applied for a review of the order on the ground that the lower Court did not take into consideration several of the points which were alleged in his written statement and the purshis which had been put in by him. THIS application was filed on an eight annas stamp, and was stated to be either for review or under Section 151 of the Civil Procedure Code. The judgment-debtor wanted to set off the sum of Rs. 8, 832 as against the mesne profits which had been found due from him. THIS application for review was granted. The judgment-creditor has appealed on the ground that the application for review was insufficiently stamped, and on certain points which affect the merits.

(2.) A preliminary objection has been taken by the respondent that no appeal lies, inasmuch as by the rules framed by this High Court, Order XLIII, Rule I, Clause (w), has been repealed, and an appeal against an order granting a review will only lie under the provisions of Order XLVII, Rule 7. It is admitted that this is so, and the point has been made clear in Kunversi v. Pitamberdas (1927) 29 Bom. L.R. 1355, followed in Shidramappa V/s. Gurushantappa (1918) 31 Bom. L.R. 137. In the Presidency of Bombay an appeal from an order granting a review can lie only on the grounds mentioned in Order XLVII, Rule 7, of the Civil Procedure Code, since Order XLIII, Rule 1, Clause (w), has been repealed by the Bombay High Court. It is contended that the present appeal does not fulfil any of the conditions of Order XLVII, Rule 7, which only provides for an appeal on the ground that the application was in contravention of the provisions of Rule 2 or Rule 4 of Order XLVII, or was made after the expiry of the period of limitation, none of which apply. Rule 2 refers to application for review of a decree or 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 referred to in Rule 1, or the existence of a clerical or. arithmetical mistake or error, being made only to the Judge who passed the decree. Admittedly this application was made to the same Judge, so Rule 2 does not apply. Rule 4 refers to notice being given to the opposite party, which has been done in this case, and Rule 4 too does not apply, Also there is no question of limitation. Hence the appeal would not lie. The learned advocate for the appellant concedes that ordinarily speaking an appeal would lie only under the provisions of Order XLVII, Rule 7 and that the present appeal does not conform with the requirements of that rule, but he contends that the application for review is not really an application for review at all, because it is not correctly stamped as provided by Schedule I, Articles 4 and 5, of the Court Fees Act, 1870, by which the fee payable on an application for review is the same as that on the plaint or the memorandum of appeal, or half of it if it is made within a period of ninety days, as the present application was, and he contends that inasmuch as the fee leviable is ascertainable, for the amount awarded by the Court in its order was Rs. 5,875, and the judgment-debtor now wants relief in respect of Rs. 3,832, the amount of Court-fee payable would be on half the amount awarded. And as no Court-fee was paid, the present application for review is a nullity. That is a contention which should have been and was as a matter of fact taken when the application for review was presented. The Judge has dealt with it in his judgment as a preliminary issue, and he finds that the Court-fee paid is sufficient and proper, and subsequently on the merits he granted the application for review. Now whether the finding of the lower Court that the Court-fee paid is proper is right or wrong, and on reference to the cases on which he relies I think it is almost certainly right, that makes no difference, because once he has granted the application for review, on whatever grounds he has granted it, the appeal against it. can only be made under the conditions laid down in Order XLVII, Rule 7, and the question of the application for review being insufficiently stamped is not one of the grounds mentioned in Order XLVII, Rule 7, as being a proper ground for an objection. I am, therefore, of opinion that the present appeal would not lie, because Order XLVII, Rule 7, is a bar to it, and therefore we cannot go into the question of whether the Court-fee paid was sufficient or not. That is a question which was considered by the lower Court and decided by it. The result is that the appeal must be dismissed with coats.