ACHAMBAT ABDURAHIMAN, MINOR, BY HIS MOTHER THITHACHUMMA Vs. KELAVARMAN PUTHENTHERUVIL KIZHAKKAYIL IMBICHUNNY (DEAD) AND GOPALAN ADDED AS LROF 1ST RESPONDENT

JUDGEMENT

(1.) This appeal arises in the following way. In execution of the decree in O.S. No. 782 of 1916 on the file of the District Munsif's Court of Parpanangadi the suit properties were attached. A petition against such attachment was put in - E.A. No. 166 of 1928 - and the Court found that the petitioners had no right to the property and passed an order dismissing the petition on 1.0 December, 1.928. Against that order an appeal was filed in the District Court which was transferred to the Subordinate Judge's Court of Ottapalam. After the passing of the order against which the appeal was filed, the appellants filed E. A. No. 1670 of 1928 in the District Munsif's Court of Parpanangadi for a review of the order; and on that review application notice was issued to the respondent to appear by pleader and file objections, and the Court passed its order on 18 January, 1929, rejecting the petition. When the appeal against the order in E.A. No. 166 of 1928 came on for hearing, a preliminary objection was raised that the appeal was not competent and the Subordinate Judge, holding that it was not competent, dismissed it. Against this order the present appeal has been filed.

(2.) The matter is one of considerable difficulty. The learned Subordinate Judge held that, though the effect of the order, dated 18 January, 1929, on the review application was to repeat the former decree, nevertheless on the authority of Vadilal V/s. Fulchand (1905) I.L.R. 30 Bom. 56 at 58 the whole matter having been re-opened, there was a fresh decree and therefore the appeal against the order of 10 December, 1928, was not competent. The decision in Vadilal V/s. Fulchand (1905) I.L.R. 30 Bom. 56 at 58 and Gour V/s. Nilmadhab (1922) 36 C.L.J. 484 lay down clearly the procedure which should be followed in regard to an application for review. As stated in the latter case, a review proceeding commences ordinarily with an ex parte application. The Court then may either reject the application at once or may grant a rule calling on the other side to show cause why the review should not be granted. In the second stage the rule may either be admitted or discharged, and the hearing of this rule may involve to some extent an investigation into the merits. If the rule is discharged, then the case ends. If, on the other hand, the rule is made absolute, then the third stage is reached; the case is re-heard on the merits and may result in a repetition of a former decree or in some variation of it. Though, in one aspect, the result is the same whether the rule is discharged or on the re-hearing the original decree be repeated, in law there is a material difference, for, in the latter case, the whole matter having been re-opened, there is a fresh decree; in the former case, the parties are relegated to and still rest on the old decree. The real difficulty in the present case is to determine whether the order was passed in the second or third stage. It seems to me clear that the Court which passed it did not realise that there were three stages and we have, therefore, to gather from what has happened at what stage the final order was passed. It is stated at page 487 in Gour V/s. Nilmadhab (1922) 36 C.L.J. 484 that The failure to recognise the distinction between the second and third stages has, as appears from the cases in the books, led to the embarrassment of litigants in many instances.

(3.) In that case also it was stated that the various stages through which an application for review may pass were not clearly appreciated by the lower appellate Court. In that case, however, the decree was reviewed, so that the present difficulty did not really arise. The appellants rely very strongly on this sentence in the order "The petition is rejected". The other side relies on the order to show that the whole matter was gone into and reliance is specially placed on the words" The mistakes pointed out by the petitioners are quite unimportant and cannot in any way modify the conclusion I have arrived at in that order". It seems to me that the facts in this case arc closely similar to those in Vadilal V/s. Fulchand (1905) I.L.R. 30 Bom. 56. But though the lower appellate Court has relied on this case for its decision, 1" am inclined to think that it supports the appellants. It is stated there at page 57: A rule nisi was issued requiring Vadilal (counter-petitioner in that case) to show cause why the application should not be granted and he resisted the application on the ground that it was time-barred.. The Subordinate Judge overruled the said plea, and dismissed the application (on 14 September, 1903) on the following ground: As to the merits I do not think that the applicant can succeed. Mr. Karpurram has thrown all costs on the applicant Fulchand and Vadilal's darkhast was due to Fulchand's default. He raised frivolous objections in Vadilal's application for execution and I consider the order made is a good one. The application for review is rejected with costs .