HAZRA SARDAR Vs. KUNJA BEHARI NAG CHOUDHURY

JUDGEMENT

(1.) This is a Rule obtained by the defendants calling on the opposite party, the plaintiff, to show cause why the judgment of this Court should not be re-viewed "as regards the cross- objection." By those words, when I issued the Rule, I meant on ground No. 9 specified in the application for review preferred to this Court. The case is a peculiar one. The present petitioners, the defendants, appealed to this Court against the preliminary decree granted by the Court of the District Judge of the Twenty-four Perganahs. The appeal was argued by an experienced and learned Vakil and it was argued before the Court, it is not denied, as if it was a competent appeal which the Court was entitled to entertain. The Court was occupied, we are informed, for two days in Hearing the appeal and, after this, not a small portion of the Court s time, the petitioners appeal failed. In that appeal the opposite party, the plaintiff, had preferred cross-objections and on hearing those cross-objections we decided in favour of the view of the plaintiff. Then conies this application for review of judgment and the ground is that it is a case coming within Order XLVII, Rule 1, Code of Civil Procedure, because under the terms of Section 97 of the Code no appeal lay against the preliminary decree as the final decree in the suit had been passed. There is no statement made before the Court as to what was the view of the learned gentleman who conducted the appeal when we heard it originally, and I do not think that we can take it that an experienced Vakil was unaware of the fact that appeal did not lie against the preliminary decree, after the passing of the final decree. In fact, he invited our decision on the materials placed before the Court. It seems to me that in a case like that the Court ought not to exercise the discretion that it has in any case to review the judgment unless it is satisfied that a real mistake was made. It is no use changing one s legal advisers and getting them to put forward a case for review of judgment on this ground.

(2.) Another ground why this review of judgment should not be granted is that I do not think that this case comes within the terms of Order XLVII, rule I. It is not a case of mistake or error apparent on the face of the record but it is a case where a mistake of law has been made, namely, that an appeal was argued without objection where apparently no appeal lay from the preliminary decree. The appeal was preferred at the instance of the persons who are the present petitioner!. I do not think that a mere mistake of law is in itself a sufficient mistake or error apparent on the face of the record for us to interfere by way of review. Then, is there any other sufficient reason shown why the review should be granted? It is quite clear that there is no other sufficient reason where the whole mistake had arisen from the conduct of the petitioners themselves. They ought to have satisfied themselves that the appeal was a competent one, and if on account of their negligence the appeal was argued and the cross- objections were allowed, they have got only themselves to thank.

(3.) I think the present Rule should fail and must he discharged with costs, five gold mohurs. Smither, J.