RAMKHELAWAN SINGH Vs. MONILAL SAHU

JUDGEMENT

(1.) This case has been re-ierred to a Pull Bench in the following circumstances: The petitioner had filed an appeal to this Court against a decree passed by the Subordinate Judge of Arrah and this appeal was numbered as Pirst Appeal No. 3 of 1938. On 5 May 1938, the appeal was laid by the Begistrar before a Bench of this Court for final order with a note pointing out that the petitioner had failed to comply with several orders calling upon him to supply the appellant's list. On that date no one appeared for the petitioner and the appeal was dismissed. On 11th June 1938, the petitioner made an application for the restoration of the appeal. This application bore a stamp of Rs. 3 and purported to have been made under Order 41, Rules 17 and 19 and Section 151, Civil P.C. The Stamp Eeporter noted on the application that the court-fee was insufficient, his view being that such an application could have heen made only under Order 47, Rule 1 of the Code. The matter was then placed before my brother Agarwala and myself and we decided to refer it to a Pull Bench. The reasons which led us to make the reference as well as the point of law which we decided to refer are set out in the following extract from our order: The Stamp Reporter suggests that the application is in faot one for review of the order dismissing the appeal and that a court fee of about Rs. 405 is leviable. On behalf of the petitioner, on the other hand, it is contended that this is an application for restoration of the appeal on which Rs. 3 stamp is leviable. In Anant Potdar V/s. Mangal Potdar A.I.R (1926) pat. 27 the cases in this Oourt for and against the view of the Stamp Eeporter are enumerated. It will appear that from the institution of the Oourt up to 1923 applications suoh as the present were always treated as applications for review. In 1924 a Bench of which Sir Jwala Prasad was a member took another view although Sir Jwala Prasad had been a member of at least one of the Benches which had decided the other way in earlier cases. The earlier cases of this Oourt applied the Full Benoh decision in Fatimunnissa V/s. Deoki Pershad (1897) 24 Cal. 350. In Haridasi Devi V/s. Sajanimohan , it was pointed out that the deoision in Fatimunnissa V/s. Deoki Pershad (1897) 24 Cal. 350 was based on the language of an earlier Oode of Civil Procedure and held thatthe application was not an application in review. The question is continually arising in this Oourt and it is desirable that the matter should be settled one way or the other. The question which requires consideration is whether an application to set aside an order dismissing an appeal for non-filing of the appellant's list within the time allowed can be entertained, unless it, be treated as an application for review under Order 47, Rule 1, Civil P.C. We refer the matter to a Full Bench under Ch. 5, Rule 4 of the Rules of this Court.

(2.) In Ramhari Sahu V/s. Madan Mohan Mitter (1896) 23 Cal. 339 a Bench of the Calcutta High Court had held that art application for re-admission of an appeal dismissed for the appellant's failure to deposit the costs for the preparation of the paper, book was not an application for review, but an application under the rules of the High Court. This decision was overruled in Fatimunnissa V/s. Deoki Pershad (1897) 24 Cal. 350 by a Full Bench of five Judges who held that the remedy of the appellant in such a case was to apply for a review and the reasons they gave in support of this view were as follows: Under the Oode there are only two ways known to the law by which a judgment and decree of a Divisional Benoh of this Court can be set aside in India. These two methods are described Secs.558 and 623 of the Code. The present case is clearly not one in which default was made in appearing at the hearing of the case, for the record shows that the pleaders on both sides were in attendance and heard. It seems to us therefore that the view expressed in the reference is correot, and that the case in Ramharisahu V/s. Madan Mohan Mitter (1896) 23 Cal. 339, so far as it decides the contrary is wrongly decided.

(3.) In this Court before 1924 there was on the whole a tendency to follow the praotice which had prevailed in the Calcutta High Court since the deoision of the Pull Bench; but in some cases it was observed that; the dismissal of an appeal for failure to file the appellant's list or deposit the printing cost within the time allowed by the Court could be set aside under Order 41, Rule 19, read, with Section 151, Civil P.C. In 1924 the question as to what was the proper procedure for setting aside suoh a dismissal was directly raised before a Division Bench of this Oourt in Anant Potdar V/s. Mangal Potdar A.I.R (1926) pat. 27 and the learned Judges who sat on the Bench held, following the deoision in Fatimunnissa V/s. Deoki Pershad (1897) 24 Cal. 350, that an application to set aside the dismissal must be regarded as one for review under Order 47, Rule 1. The learned Judges recognized that the order dismissing the appeal was no longer a decree under the amended Code, but they pointed out that it was still a judgment. The correctness of this decision has been reoently doubted in Haridasi Devi V/s. Sajanimohan in which it has been held that an application for restoring an appeal dismissed for default in the payment of initial deposit is not an application for review but an application under Order 41, Rule 19 read with Section 151 of the Code. The same view seems to have been taken by the Bombay High Court in Sonubai V/s. Sivajirao A.I.R (1921) . Bom. 20 and by the Judicial Commissioners of Bind in Mt. Dhayani V/s. Ishak A.I.R (1931). Sind. 153. The question which has now to be decided by this Bench is which of the two conflicting views is correct. Order 47, Rule 1 provides that a party aggrieved by a decree or an order specified in Clauses (a), (b) and (c) of Rule 1 may apply for review on any of the follow, ing grounds: (1) on the ground of the dis. eovery of new or important matter or evidence which after the exercise of due diligence was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made; (2) on account of mistake or error apparent on the face of the record; and (3) for any other sufficient reason.