SITARAM Vs. KANIRAM

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. The facts which led to this reference are stated in the order of reference, dated 5th February 1929. In execution of a money decree certain village shares were sold. The applicant Sitaram preferred a claim to pre-empt these shares to the executing Court; that Court held that Section 151, C.P. Land Revenue Act did not authorise investigation of such claims by the executing Court. Sitaram applied in revision to Findlay, J.C. who refused to interfere and in the order dismissing the application remarked that the applicant was not prejudiced by the refusal of the executing Court to consider his claim to pre-emption, but still had a remedy by suit open to him. The applicant then filed a suit to enforce his right of pre-emption. The trial Court decreed the suit and an appeal was dismissed. In second appeal, however, the suit was dismissed as a Full Bench--Govinda v. Murlidhar A.I.R. 1928 Nag. 48--had ruled that a claim to pre-empt under Section 151, C.P. Land Revenue Act, was enforceable in execution proceedings and could not be enforced in a separate suit. The present application was then filed; the applicant asked for review of the order of Findlay, J.C. Findlay, J.C., considered it highly desirable that a Full Bench should deal with two questions: (a) Whether, on the facts stated in the first part of thia order, a case like that of the present applicant can be brought within the letter of Rule 1, Order 47, Civil P.C.; (ii) Whether, even if the first point be held against the applicant, the circumstances of such a case would permit of this Court reviewing its order in the applicant's favour in the exercise of the inherent powers of the Court under Section 151, Civil P.C.

(2.) THE non-applicant urges a preliminary objection. His first argument was that Pindlay, J.C., had in reality held that the application for review should be dismissed. I am unable to follow this argument. It is quite clear that Pindlay, J.C. considered that the opinion of a Bench on certain questions should be obtained before he disposed of the application.

(3.) THE applicant urges that review can be granted in accordance with the provisions of Order 47, Rule 1, Schedule 1, Civil P.C. both on the ground, that new and important matter has been discovered and on the ground that there is something analogous to an error apparent on the face of the record. Now, for the purpose of deciding whether the applicant is entitled to apply for a review Under Order 47, Rule 1, I have to consider only whether the conditions mentioned in the rule are satisfied. The question of hardship to the applicant does not arise. The facts material for decision of this point then are simply these: A Judge took a certain view of the law and dismissed an application: subsequently a tribunal whose decision that Judge was bound to follow took a contrary view of the law. The applicant's counsel admitted that an application did not lie in the numerous cases were these facts exist. These were the facts which were considered by a Bench of this Court in Ramchandra v. Govindrao A.I.R. 1925 Nag. 266 and in that case for reasons with which I am in entire agreement it was held that there was not ground for granting a review. I add that in a Pull Bench ruling of their Lordships of the Privy Council Chhajju Ram v. Neki A.I.R. 1922 P.C. 112 (at p. 133 of 3 Lah.),. their Lordships state that: the three cases in which alone mere review is permitted are those of new material overlooked by exousable misfortune, mistake or error apparent on the face of the record, or 'any other sufficient reason'.