KHURSHED ALAM KHAN Vs. RAHMAT-ULLAH KHAN

JUDGEMENT

(1.) THIS is an application in revision against an order of the District Judge of Gorakhpur admitting an appeal, presented under Order XLIII, Rule 1 (a) and Order XLVII, Rule 7, of the Code of Civil Procedure, against an order of the Subordinate Judge of Basti granting an application for review of a certain judgement and decree of his own court. No second appeal lies against the order of the District Judge, and the only question which I have to consider is whether the applicants now before me, who were, the plaintiffs in the suit, have brought their case within the purview of Section 115 of the Code of Civil Procedure. The facts of the case are somewhat peculiar. The plaintiffs claim was one for possession of certain property, together with mesne profits and certain other sums of money claimed as due to the plaintiffs under their cause of action. The claim was partly decreed and partly dismissed, and as a matter of fact the plaintiffs took out execution of the decree to the extent to which it was in their favour. They subsequently applied for review of judgement and their application was allowed. The result of the review was that a declaration in their favour in respect of a certain item of property was substituted for the order dismissing their claim in respect of that property altogether which appeared in the original decree. Consequently upon this order there was a further decree in favour of the plaintiffs for a certain sum as mesne profits. There was also added to the decree an award in favour of the plaintiffs in respect of another small item of money, their claim to which had. been dismissed in the decree as originally framed. It must be remembered that the defendants had a right of appeal against the amended decree: if that decree was wrong in law, or inequitable on the facts, the error could have been set right by the District Judge in a regular appeal from the decree. The defendants, however, elected to exercise their alternative right of appeal against the order granting review of judgement. Now this right has been rigidly limited by the provisions of Order XLVII, Rule 7, of the Code of Civil Procedure to certain very narrow grounds. The reasons for the limitations thus imposed upon the right of appeal from an order granting a review of judgement are obvious. A court presumably only reviews a previous judgement of its own when it is satisfied that its previous judgement was wrong and unfair to one of the parties. If the judgement as passed upon review is in error, an appeal lies against it, as has already been pointed out. Consequently the Legislature does not intend that the discretion of a court in the matter of granting a review of its own judgement should be interfered with in appeal, except on the specific grounds set forth in Order XLVII, ule 7, of the Code of Civil Procedure. The petition of appeal presented to the District Judge did not challenge the order granting review of judgement on any of the grounds set forth in Clause (1) (a) and (b) of Rule 7, Order XLVII, of the Code of Civil Procedure. There was a plea that the application for review had been presented to the Subordinate Judge after the expiration of the period prescribed therefor. There was also a plea that the first court had granted review of its judgement without sufficient cause; but it seems to me that it is at least open to question whether the memorandum of appeal presented to the District Judge can be regarded as challenging the order granting review of judgement on the ground that the application had been made after the expiration of the period of limitation prescribed there for and that it had been admitted without sufficient cause. That seems to be the meaning of Clause (c) of Order XLVII, Rule 7 (1), of the Code of Civil Procedure. At any rate the District Judge has not decided this point. The question of limitation has not been dealt within a very satisfactory manner by either of the courts below. The learned Subordinate Judge merely takes note of the fact that the defendants have challenged the application for review of judgement on the ground of its having been presented after the expiration of the prescribed period of limitation and he remarks" that there is no force in this objection. I think the learned Subordinate Judge was of opinion that, because the application for review had been presented after the 90th day from the date of the decree under the provisions of article 4 of the first schedule to the Court Fees Act, No. VII of 1870, no question of limitation could be raided in respect of it. I think this point is a very arguable one. I should feel considerably hesitation in holding that the plain words of article 173 of the first schedule to the Indian Limitation Act, No. IX of 1908, could (sic)beinterpreted subject to anything contained in the Court Fees Act. On the other hand, nothing in the Limitation Act can be treated as limiting the inherent power of a court to amend its own manifest errors, which is now expressly recognized by sections 151, 152, and 153 of the Code of Civil Procedure. As a matter of fact the application for review presented to the learned Subordinate Judge raised two distinct points. It called attention to what was unquestionably a mistake or error apparent on the face of the record, in that the decree as originally framed operated to dismiss the plaintiffs claim for a certain small sum of money in respect of which the defendants had admitted liability in their written statement. In the second place it raised a more debatable question, in that it asked the learned Subordinate Judge to reconsider his decision dismissing altogether the plaintiffs claim in respect of one of the items of immovable property specified at the foot of the plaint. The order of dismissal had been passed on the express ground that the plaintiffs claimed possession of a specified share of the said property, and had not sought either a decree for joint possession to the extent of their share, or relief by way of declaration. The plaintiffs now took leave to point out to the Court that its decision apparently overlooked a paragraph of the plaint in which there was a general prayer for such alternative relief as the court might consider suitable to the ascertained facts. The plaintiffs at the same time drew the attention of the Subordinate Judge to a reported decision of the Court in which a decree for a declaration of title and for mesne profits had been granted on a state of facts substantially similar to those which the plaintiffs had established in the present suit. The learned Subordinate Judge granted a review on both points. It is certainly arguable that the latter of those two points cannot, without some straining of language, be regarded as a mistake or error apparent on the face of the record. At the same time the discretion conferred upon a court by the words " for any other sufficient reason" in Order XLVII, Rule 1, of the Code of Civil Procedure is a wide one and Rule 7 of the same order does not provide for a right of appeal against the exercise of such discretion. In the present case, moreover, the learned Subordinate Judge found himself compelled to make one alteration in the decree passed by him, and he may well have considered that being thus seised of the whole matter he was entitled to take a liberal view of the extent of his jurisdiction in respect of the other question raised. The learned District Judge in appeal seems to have assumed that the first court had entirely overlooked the provisions of article 173 of the first schedule to the Indian Limitation Act. He has remarked that the application for review was clearly beyond time under the provisions of that article and has treated this finding as disposing of the entire question. On behalf of the defendants it has now been contended before me that I ought not to interfere with the decision of the court below merely on the ground that it seams to me to have taken an erroneous view of the question of limitation. To this I should be prepared to accede; but the objection to the decision of the learned Judge is that he has reversed the order of the first court without coming to a finding that the conditions laid down by Order XLVII, Rule 7, of the Code of Civil Procedure as justifying interference in appeal with an order granting a review of judgement were completely fulfilled. He has not considered at all the question whether the application for review was or was not made after the expiration of the prescribed period without sufficient cause. I think that on this ground I should be justified in setting aside the order of the court below and sending back the appeal to be disposed of on the merits. After, however, having heard the parties at some length and fully examined the record before me, it seems to me useless to do this, and that the question of the order of the Subordinate Judge granting review of judgement should in the interests of the parties concerned be disposed of now once and for all. As a matter of fact there had been an error committed by the first court in the passing of its first decree which was eminently calculated to give trouble at a subsequent stage in the event of any question of limitation being raised According to the order sheet in the ease, the learned Subordinate Judge delivered his judgement in the presence of the parties on the 2nd of December, 1914, and an application for a copy of the judgement and decree was actually presented on the following day. In the meantime, however, the court seems to have come to the conclusion that something further required to be done, or some document required to be inspected before a final decree was passed, and it fixed the 23rd of December, 1914, for further consideration of the case. On that date it re-affirmed the judgement previously delivered and directed a decree to be prepared accordingly. The result was that two decrees seem to have been drawn up. At any rate I find two decrees on the record: one dated the 2nd of December, 1914, and the other dated the 23rd of December, 1914. Such a procedure was obviously calculated to mislead the plaintiffs and to lead them into error as to the period available to them, either for presentation of an appeal or for presentation of an application for a review of judgement. If they could be allowed to calculate the period of limitation from the 23rd of December, 1914, and at the same time to add to the period necessary for obtaining a copy of the decree, the interval between the 3rd and 23rd of December, 1914, during which their application for copy prematurely presented was lying in the copying department of the court, they would actually bring themselves within the limitation period, I do not say that this could be permitted; but it does seem to me that this was a case for the application of the provisions of Section 5 of the Indian Limitation Act, which, let it be observed, refer to an application for review of judgement as well as to appeals. If the learned Subordinate Judge, in admitting the application for review, had relied on Section 5 above mentioned, I do not think any question of limitation could possibly have been raised at any subsequent stage, That he did not do this in express terms may possibly have been due to the fact that he thought it unnecessary, and was more probably due to the view he took of the law of limitation applicable to an application for review of judgement sbamped with the full fee payable. At any rate he did admit the application, and as there were in my opinion clearly sufficient grounds for its admission on the date on which it was presented, I do not think that any good purpose would be served by allowing this question of the review of judgement to be further litigated between the parties, I only wish to add that, if the defendants should be advised even now that an appeal is maintainable against the decree as amended, or against any part of that decree, on any valid plea of law or of, fact, I think that any court to which such petition of appeal is presented would be well advised to take a liberal view of the provisions of Section 5 of the Limitation Act as applicable to the particular circumstances of this case, and as far as possible, allow the defendants an opportunity, should they desire it, of having the more debatable of the two questions raised by the application for review of judgement finally decided on the merits. Subject to these remarks, I set aside the decree of the court below and in lieu thereof pass a decree dismissing the appeal against the order of the Subordinate Judge granting review of judgement, with costs in this and in the lower appellate court.