KAILASH CHANDRA SOMADDAR Vs. REVATI MOHAN ROY CHOWDHURY

JUDGEMENT

(1.) Appeal from Appellate Decree No. 1363 of 1915 was dismissed by Mr. Justice Teunon and Mr. Justice Smither on the 4th of August 1916. An application for review of the judgment passed in the appeal was presented before Mr. Justice Teunon on the 28th of November 19 (sic)6, when Mr. Justice Smither had ceased to be a Judge of this Court The application was rejected by Mr. Justice Teunon, sitting alone. Against the order rejecting the application for review this appeal is sought to be preferred under Section 15 of the Letters Patent. The papers have teen put before us for our orders upon the question as to whether the present appeal should be registered. It is suggested to us that we might direct the appeal to be registered subject to objection at the hearing. But in the present case no useful end would be served by such a course, seeing that we are prepared to deal with the matter at once.

(2.) It has not been contested before us that Mr. Justice Teunon had jurisdiction to pass the order which he did and that Mr. Justice Smither, having ceased to be a Judge, Mr. Justice Teunon was in fact the only Judge who could deal with the application which was presented to him. If the application had been made to both Judges, that is, if Mr. Justice Smither had remained a member of the Court at the time the application was made, the order could not have come before us. There can be no appeal merely because Mr. Justice Teunon, who was the only Judge who, under the circumstances, could hear the case, disposed of the application as a Sing e Judge. The intention of the Legislature was that an application for review should be entertained by the Judges or Judge who heard the case and no one else. If we were to give effect to the argument before us the result would be this: It is admitted by the learned Vakil who appeared before us that we should be invited to say that Mr. Justice Teunon erred in not granting the application for review, and that he ought to have granted the application and should have made the Rule absolute. In other words, we should have to consider not merely the judgment of one Judge of this Court, but the judgment of two Judges of this Court of which review was sought by the application before Mr. Justice Teunon.

(3.) It is admitted by the learned Vakil who appears before us that there is no authority which directly supports his argument. On the contrary, there are three decisions which are directly adverse to it, namely, those reported as Musammat Rughoo Bibee v. Noor Jehan Begum 12 W. R. 459 : 4 B. L. R, A. C. J. 10; Aubhoy Churn Mohunt v. Shamont Lochun Mohunt 16 C. 788 : 8 Ind. Dec. (N.S) 523. and Mulji virji v. Bangabashi Saha 9 C. W. N. 502. The decision in Mathura Sundari Dassi v. Haran Chandra Shaha 34 Ind. Cas 634. 23 C. L. J. 413 at p. 482 : 20 C. W. N. 594 : 43 C. 857. is distinguishable, in that there it was held that the application was not an application for review of judgment. Whether that decision on this point was correct or not, we need not here consider; but it has obviously no bearing upon the matter now before us, which is a question whether an appeal does or does not lie from the order of a Single Judge refusing an application for what is admittedly a review.