THAKUR SINGH Vs. DINANATH SAH

JUDGEMENT

(1.) The opposite party obtained against the petitioner and his father in the Court of the Munsif of Motihari a money decree for Rs. 1,497. The decree directed that this amount was realizable from the joint family property. The Munsif who passed the decree had jurisdiction up to Rs. 2,000. By the time the decree- holder applied for execution, the pecuniary jurisdiction of the Munsif, to whom it was made, was Rs. 1,000 only. The execution case was therefore transferred to the Subordinate Judge who, on the application of the decree-holder, attached certain property. The petitioner raised an objection that the property attached was not a joint family property but had come to him from his maternal grand-father by inheritance and was therefore his exclusive property. The Subordinate Judge upheld this objection by his order dated 26 January 1933.

(2.) Thereafter the decree-holder instituted Title Suit No. 78 of 1933 for a declaration that the disputed property was a joint family property and was liable in execution of his decree. In this suit, the present petitioner filed certain documents which had not been available to him at the hearing of his objection under Rule 58 but on which he now relied in the suit for the purpose of proving his assertion that the property was his exclusive property. The suit was decreed on 11 June 1934, but was dismissed on appeal by the defendant on 18 March 1935. A second appeal to this Court was preferred by the plaintiff decree-holder. It was dismissed summarily under Order 41, Rule 11 on 12 August 1935. The learned Judge who dismissed the second appeal pointed out that as the objection which had been filed by the present petitioner raised a question between the decree-holder and one of the judgment-debtors, it fell within Section 47, Civil P. C, and not under Order 21, Rule 58, and therefore that the remedy of the plaintiff-decree-holder against the order upholding the objection was by way of appeal and not by way of suit. Thereafter on 5 September 1935, the decree-holder filed Miscellaneous Appeal No. 101 of 1935 under Section 47 of the Code against the order of 26 January 1933 upholding the present petitioner's objection. As the appeal was obviously time-barred, an application was also made to the Court under Section 5, Lim. Act, to condone the delay in filing the appeal.

(3.) An application was made to the appellate Court by the present petitioner to take into consideration the additional documents on which he had relied in the suit but which had not been available to him at the hearing of the objection. The appellate Court condoned the delay but declined to receive the additional evidence. The appellant thereupon applied for leave to withdraw the appeal and pursue his remedy by way of review. The Appellate Court permitted the appeal to be with, drawn. An application was then made by the decree-holder on 3rd February 1936, for review of the order of 26 January, 1933. This was made to the Munsif of Motihari and not to the Subordinate Judge who had passed the order. It was dismissed on 6 June 1936, and an application in revision against the order of dismissal was dismissed by this Court on 21 September 1936. The learned Judge who disposed of the application held that the Munsif to whom the application was made had no jurisdiction to entertain it. Thereafter, on 9th October 1936, the decree-holder applied to the Subordinate Judge of Motihari for review of the order of 26 January 1933. As this application was time barred, an application was made to the Court to condone the delay in view of the circumstances narrated above. The Court condoned the delay by its order dated 13 January 1937 and now proposes to consider the application for review of its order of 26 January 1933. Against that order the judgment-debtor has moved this Court. The learned advocate who has appeared for him has challenged the order on the ground that the Subordinate Judge had no jurisdiction to entertain the application for review and on the further ground that the application wasbarred by limitation. With regard to the point of jurisdiction, the learned advocate for the petitioner referred to Order 47, Rule 1, which is in these terms: Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred, and who, from the discovery of new and important matter or evidence which ... was not within his knowledge ... at the time when the decree was passed or order made ... may apply for a review of judgment to the Court which passed the decree or made the order.