AHID KHONDKAR Vs. MAHENDRA LAL DE

JUDGEMENT

(1.) Did the lower Appellate Court proceed on the merits?

(2.) Yes. In this Court Mr. Justice N. R. Chatterjea has upheld the action of the lower Appellate Court. But Section 629 of the old Code of Civil Procedure allows an appeal only when the review is granted, one of the grounds being that it was granted in contravention of the provisions of Section 626. According to Mr. Justice N. R. Chatterje s decision there would be an appeal in every case of review on the ground that the allegations had not been strictly proved. [Reads Sections 624, 626 and 629 and comments thereon.] In the present case the court of first instance when granting the review has acted according to the provisions of Section 626, in that it was satisfied that there was strict proof of the allegations made in the application for review and this finding was no doubt arrived at upon the evidence produced into proof of the allegations. I submit that the Appellate Court could not enter into the sufficiency of the evidence and give a different judgment, upon the same evidence, as to the question whether there was strict proof of the allegations in the petition of review. The Court of first instance believed the evidence, the Appellate Court disbelieved the same evidence and in consequence thereof the Appellate Court thought that the trial Court acted without jurisdiction in admitting the review. I submit he is wholly wrong. Further, if the Appellate Court be allowed to interfere with the sufficiency of the reason, or weight of evidence, given or attached by the trial Court then the applicant in whose favour the decree after review was passed will be deprived of the right of appeal against the original decree. If the opinion of Mr. Justice N. R. Chatterjea, be upeld it will rather impede the administration of justice and work out injustice to the party benefited by the admission of the review, as he cannot file any appeal against the first decree superseded thereby; nor could he simultaneously with the prosecution of the review proceedings go on with an appeal against the decree prior to review: and if be could, and succeeds therein be has no need to go on with the appeal.

(3.) I therefore submit that the order passed on the application for review under this section is final, in both cases when the order rejects the application or admits the application after observing the formalities enumerated in Section 626; and in the present case the Court admitting the review has not acted in contravention of the requisite formalities. Jenkins, C.J.