PROBHAS KUMAR GANGULI Vs. NITHAR LAL GANGULI

JUDGEMENT

(1.) THE petitioners applied for review of an order passed by the Munsif of Chuadanga dismissing their suit on the ground that the said order had been passed on overlooking the fact that the defendants had admitted a portion of their claim. THE application was headed as one under Order 47, Rule 1 and Section 151 of the Civil P. C.. THE learned Munsif passed an order, the material portion of which ran as follows : "I am satisfied that the application comes more properly under Section 151 than under Order 47, Rule 1. I must note here that the application in question has been filed under both provisions of law. I therefore allow it and restore the case for re-hearing under Section 151, Civil Procedure Code." THE suit was proceeded with and the previous-decree modified. THE petitioners then applied for refund of Court-fees under Section 15 of the Court Fees Act. THE learned Munsif refused the application, being of opinion that he had acted under Section 151, Civil Procedure Code and therefore the petitioners were not entitled to the refund. On the application of the petitioners for revision of the said order, the present Rule was issued upon the Collector of the District of Nadia to show cause why the said order should not be set aside. THE Collector has sent a letter in answer to the Rule, supporting the order in question and the learned junior Government Pleader has appeared and also supported the same.

(2.) NOW, in order to attract the operation of Section 15 of the Court Fees Act, the conditions requisite are that there should be an application for review of judgment, that it should have been admitted, that on there hearing the Court should have reversed or modified its former decision on the ground of mistake in law or fact, and that such reversal or modification was not due to fresh evidence which might have been produced at the original hearing." All these conditions seem to have been satisfied in the present case. The only objection put forward is that the Court purported to act under Section 151, Civil Procedure Code and not under Order 47, Rule 1. It is difficult to see why the provisions of Order 47, Rule 1, Civil Procedure Code would not apply to the case, for the review was sought for on the ground of a 3 mistake or error apparent on the face of the record, Where the power is granted by the Code itself it is not necessary to invoke the inherent powers of the Courts under Section 151, C.P.C. The powers exercisable under these respective provisions are not mutually exclusive. It is unnecessary, however, to discuss whether the Court was right in holding that it should proceed under Section 151, C.P.C., rather than under Order 47, Rule 1 for the simple reason that it is difficult to see how the petitioners can be said to have been in a worse position, if the Court chose to proceed under Section 151, C.P.C. it being remembered, that no application on the part of the petitioners, far less any with Court-fees as on an application for review, need have been filed Peary Chowdhury V/s. Sonoo Das (1914) 19 C.W.N. 419. As the case came clearly under Oreder 47, Rule 1, C.P.C., and as the conditions requisite for bringing the ease within the purview of Section 15 of the Court Fees Act are clearly present, the rule is made absolute and the order complained of is set aside. The Munsif is directed to grant the certificate for refund which the petitioners applied for. No order is made as to coats.