MANIKALAL RAMCHANDRA MARWADI Vs. BHIKAMCHAND RAMSUKH MARWADI

JUDGEMENT

(1.) ON 17th November 1936 a. Judge of this Court heard an appeal out of which this Letters Patent Appeal arises. He delivered judgment on 24th November 1936, and the appellant whose appeal was dismissed asked on the following day for leave to appeal under the Letters Patent. He was heard on 26th November 1936 and in a considered order, which appears on p. 45 of the Paper Book, the Judge refused leave to appeal. On 20th February 1937 the appellant put in a petition of review of the judgment, and on the same day put in. a petition filed on a two-rupee stamp to the effect that the Court had possibly followed a rule not in consonance with the practice of the other High Courts in refusing leave to appeal, and praying that if his application for review of the judgment was rejected, at least leave to appeal should be granted. Subsequently, on 3rd August, a further application was put in, asking that the review application on the original judgment should be heard by a Bench or that leave should be granted to the plaintiff to file a Letters Patent Appeal. The application concluded with the prayer that the order refusing leave, be. reviewed and reconsidered and that the leave should be granted. This was treated as a review application of the order rejecting the application for a Letters Patent Appeal: vide the Court's order of 7th April 1937. In that order the Judge considered that, as after the passing of his previous order rejecting the application a convention had been arrived at among the Judges of the Court with respect to such applications, the felt justified in granting leave to appeal. But our learned brother had some doubt whether he had power to review his own order. He stated that as at present advised the considered that he had power under the inherent powers of the Court, and in the circumstances granted leave, but with this proviso, that the question whether he had the power to review his own order, was to be decided by the Divisional Bench which was to hear the Letters Patent Appeal. The appeal which was prima facie considerably beyond time was admitted by a Divisional Bench of this Court as within time subject to objection by the other side.

(2.) A preliminary point is raised in objection on behalf of the respondent that no appeal can lie, and it is urged that when once a Judge has refused permission, he is functus officio and cannot revise or review his own order, and that as such an order is not one passed under the provisions of the Civil Procedure Code, no provision of that Code, even including Section 151, can be held applicable. The appellant contends that all that the Court was concerned with was under Clause 10 of the Letters Patent to declare that the case was a fit one for appeal, and that it was immaterial whether it had previously refused to make such a declaration. In our opinion, the contention of the respondent that no appeal lies must succeed on the very short point that the case is governed by the rules made by this Court under the powers conferred by Clause 27 of the Letters Patent read with Sub-section (1) of Section 106, Government of India Act. Rule 10 of those rules published in notification No. 2022-II-21-8-34, dated 9th March 1936 runs as follows: An application for leave to appeal under Clause 10 of the Letters Patent against an appellate judgment of a single Judge of the High Court shall be made in writing or orally to the Judge deciding the appeal immediately after the judgment is delivered. No other application for such leave to appeal shall be entertained.

(3.) THE question of limitation which would naturally arise if the question of the admissibility of the appeal had terminated in the appellant's favour, need not now be considered. The preliminary objection, then succeeds and the appeal must be dismissed as untenable. Counsel's fee Rs. 30.