RAI HARENDRA NATH CHAUDHURY Vs. SONA GAZI

JUDGEMENT

(1.) We think that this Rule should be made absolute. The facts of the case are as follows: A decree was obtained ex parte in the Second Court of the Munsif at Khulna on behalf of certain co-sharers. The decree was executed at the instance of one of the co-sharers alone and the standing crops of the judgment-debtor were attached. The other co-sharer on coming to hear of the execution applied for being made and was made an executing decree-holder. Then apparently the other co-sharer arrived at a compromise with the judgment-debtor whereby the execution case was dismissed on certain terms. The petitioner who obtained the Rule objected to the compromise which involved the dismissal of the execution case and he, accordingly applied for a review on the ground of fraud. The review was granted which involved the rehearing of the execution case. Against the grant of the review an appeal was preferred and on appeal the order granting the review was set aside and the compromise arrived at in the execution proceedings was allowed to stand and this Rule was obtained against that order which had the effect of setting aside the review and restoring the compromise arrived at in the execution proceedings.

(2.) The Rule is supported on the ground that there is no appeal from the order granting the review. It is stated that by virtue of the provision of Order XLI, Rule 7 of the C.P.C. the order rejecting the application for review is not appealable but that the order granting the application for review may be objected to on the grounds that are stated in Rule 7 of Order XLVII but it is stated that inasmuch as the appeal directed against the review did not fall within any of the matters set out in Rule 7 no appeal lay and we were referred to the case of Hari Charan Saha V/s. Baran Khan 25 Ind. Cas. 903 : 41 C. 746 which lays down that an order granting an application for review of a judgment can only be objected to on the grounds specified in Rule 7 of O.XLVII. Various matters were urged before us in opposition to the Rule. First of all we were referred to a judgment to which I was a party which, it is stated, supports the view that an appeal in the circumstances does lie. We have read the judgment. I cannot see that it decides any such thing. It seems to me to have no application to the facts of the case now before us.

(3.) Then we were asked to say that the decision in Hari Charan Saha V/s. Baram Khan 25 Ind. Cas. 903 : 41 C. 746 to which we have referred and the other decisions to the same effect are all wrong for reasons which are stated and which it is said were not considered in these cases. We have listened to the reasons urged and we are not prepared to say that the decision in Hari Charan Saha V. Baran Khan 25 Ind. Cas. 903 : 41 C. 746 is not correct or that the other decision to which we have been referred were arrived at under a misapprehension of the law such as the learned Vakil alleges.