YUSUF I A LALJI Vs. ABDULLABHOY LALJI (NO1)

JUDGEMENT

(1.) On February 4,1929, I dismissed the chamber summons taken out by defendants Nos. 4A, 4B, and 6 in suit by which they had applied for vacating the consent order made by me on December 11, 1928. I am not at all clear as to the ground on which I dismissed the summons. Two points were urged on that summons on behalf of defendant No. 13. One was that the procedure by way of chamber summons was misconceived and the proper remedy of defendants Nos. 4A, 4B and 6 was to file a suit for setting aside the consent order made on December 11, 1928. The other was that on the merits of the application no case was made out for vacating the consent order. As far as my recollection goes, I think the summons was not argued on the merits fully. But the ground taken as to the procedure being wrong was upheld by me and the summons was dismissed. The same day, the learned counsel on behalf of the defendants drew my attention to Mulling V/s. Howell (1879) 11 Ch. D. 763 on reading which I felt that the order made by me was wrong as far as that particular ground was concerned. When I looked into the matter myself, I found that there were other cases which clearly showed that an interlocutory order by consent could be set aside by the same Court on the same grounds as would invalidate a contract or agreement between parties such as fraud or mistake, etc. I, therefore, told the learned counsel to apply to me for a re-hearing of this matter. On that, the present application headed " Memorandum of review " was filed.

(2.) Mr. Setalvad, on behalf of some of the defendants, has raised a preliminary point that no review lies against the order made by me on December 11, and that Order XLVII, Civil Procedure Code, does not apply to this case. It may be said that about the same time when this application for review was presented to me, the order which I made on December 11 was also submitted for being signed. As it seemed to me that no review would lie unless the order which was sought to be reviewed was properly signed, I signed the same. Mr. Setalvad contends that the only point on which the present application can be sustained is that the Court committed a mistake, and relies on Chhajju Ram V/s. Neki (1922) L.R. 49 I. Section 144, s.c. 24 Bom. L.R. 1238. It is urged by Mr. Taraporevala that Order XLVII, Civil Procedure Code, applies to the case of a review of an order such as the one 1 have before me, an order, which may be clearly called an interlocutory order. But that contention does not appeal to me having regard to the express language of Order XLVII, Civil Procedure Code. There is no doubt, therefore, that if this is an application for review, the objection raised by Mr. Setalvad will have to be upheld.

(3.) It is next urged that although the application is headed "Memorandum of review", this is really an application to the Court in its inherent jurisdiction under Section 151, Civil Procedure Code, to revise or review its order if the ends of justice require it. To this argument, Mr. Setalvad replies by saying that the Court will not make use of its inherent jurisdiction as the procedure laid down by: the Code for setting aside or varying or correcting the orders once made is complete. I cannot agree. I think that an interlocutory Order made in chambers can be reviewed by the Court and ought to be reviewed if the ends of justice require it, even though the application for such a purpose does not expressly fall within the language of Order XLVII, Civil Procedure Code. Therefore, although the present summons is a summons to review the order made on December 11, 1928, I have no hesitation in treating it as an application under the inherent jurisdiction of the Court.