(PACKIRI) MUHAMMAD ROWTHER Vs. SWAMINATHA MUDALIAR

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of West Tanjore dated 7 August 1930 allowing the appeal from the decree of the District Munsif of Tanjore dated 17th November 1928. The appeal was presented on 9 January 1931. A preliminary objection is raised to the competency of this appeal in view of the fact that before the appeal was filed the appellant himself had applied to the District Judge of West Tanjore to review the judgment and decree from which the present appeal is preferred, and on that review application the judgment and the decree had been varied in some respects. There can be no doubt that there was such an application for review under Order 47, Rule 1, Civil P.C., by the appellant before the appeal was presented to this Court and that on that application for review the Court passed orders allowing it in part, that is to say toy amending its judgment, adding the words "as regards the appellant's share of the property" in para. 5.

(2.) This was not a formal amendment but was an amendment of some importance because it restricted the operation of the previous judgment and decree to the appellant's share of the plaint properties, whereas the original judgment and decree contained no such limitation. This amendment of the judgment and decree was made on the ground that there was a mistake apparent on the record. There can be no doubt therefore that in this -case there was an application for review before the presentation of the second appeal and that that review had been granted and the decree appealed from had been modified to a material extent though the modification was actually ordered after the appeal had been presented. It is contended that in these circumstances the appeal from the original decree becomes incompetent because the review of the decree appealed from by the Court below has necessarily the effect of superseding the original decree from which the appeal was preferred. Authority in support of this contention is not wanting. It is enough to refer to Vadilal V/s. Fulchand (1906) 30 Bom 56, Aditya Kumar V/s. Abinash Chandra 1931 1931 Cal 323 and Shidramappa V/s. Gurushantappa 1929 Bom 183. The law on this point is succinctly stated in Mullah's Commentaries on the Civil Procedure Code as follows: If the application for review is granted and a new decree is passed, the appeal cannot be heard and it must be dismissed for the decree appealed from is superseded by the new decree.

(3.) And a large number of authorities are quoted in the foot-note in support of this proposition. The decision in Vadilal V/s. Fulchand (1906)30 Bom 56 has been followed in Abdurahiman V/s. Imbichunny Puthentheruvil 1932 55 Mad 871, though it must be said that in that Madras case the review application itself was not competent as it was filed after the appeal had been filed. No authority contra had been cited on the side of the appellant. What is contended is that in this particular case it must be held that the second stage referred to in Vadilal V/s. Fulchand (1906) 30 Bom 56 had not been passed. This position however is quite untenable because there can be no doubt that there was an actual amendment made of the decree on review and such amendment or change in the original decree cannot be made unless the third stage has been reached and completed.