The Judgment of the Court was delivered by

Chandra Reddy, C.J

The question to be answered by the Full Bench is whether an appeal. He against an order granting review on grounds other than those mentioned in the two provisos to rule 4(2) of Order 47.

2. The facts culminating in this litigation may be shortly stated. The respondent brought a suit in the Court of the District Judge, Warangal (O.S No. 9/1/54) for a declaration that he was entitled to the exclusive uses of his trade mark, which he had registered under the Trade Marks Act, representing and describing a particular brand of beedies manufactured by him. The basis of the action was that the defendant (appellant) was closely copying this trade mark and using it as his own with slight changes and thereby causing considerable loss of trade to the plaintiff's beedi business.

3. The trial of the suit commenced in the beginning of 1956 and after two witnesses were examined for the plaintiff, including the plaintiff and some documents were marked on his behalf, it wag adjourned to 14-4-1956 for further evidence. On the adjourned date, as Plaintiff's witnesses were not present, the case was adjourned to 22-6-1956 at the request of the Counsel for the plaintiff. What happened on 22-6-1956 could be seen from the following note.

“Parties present by Advocates. Plaintiff's advocate reports that his client has not been taking any interest in prosecuting the case. No witnesses are present to day. Mr. Khaja Moinuddin, Pleader reports no instructions. Plaintiff called and is absent. Hence suit dismissed with costs for default”.

4. Nearly three months thereafter, the plaintiff filed a petition for reviewing this order alleging that the District Judge was wrong in dismissing the case to default, that he should have given a decision on the merits and that the error committed by him amounted to a failure to exercise the jurisdiction vested in him by law. The trial Judge allowed the review petition in the view that, in dismissing the suit for default, he did not exercise his discretion judicially and that he ought to have disposed of the case on merits.

5. The defendant, who was dissatisfied with his decision carried the matter in appeal to this Court. Sanjeeva Row Nayudu, J., who heard the appeal dismissed the appeal in the view that the case was covered by Rule 3 of Order 17 and not Rule 2, and that as the trial Court has committed an error in dismissing the suit for default, instead of deciding it on merits, the review petition was competent and therefore the judgment of the trial Court could not be successfully questioned. This appeal under Clause 15 of the Letters patent is preferred against that decision.

6. There can be little doubt that the view of the learned Judge that it is rule 3 that applies and not rule 2 is unsustainable.

7. At this stage it is convenient to refer to Rules 2 and 3 of Order 17.

(2) where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

(3) where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.

8. It is profitable to reproduce Order 9 Rule 3 as Order 17 Rule 2 requires the Court to dispose of the suit in accordance with Order IX if the parties or any of them fail to appear.

“Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed”.

9. The point that calls for determination is whether Rule 3 governs a case where the party who is granted time to perform some act not only fails to do it but is also absent or whether it falls within the ambit of Rule 2. In our opinion the scope of rule 2 is quite distinct from that of rule 3. Rule 2 applies to all cases of absence of parties irrespective of their failure to perform the act necessary to the further progress of the suit notwithstanding the fact that time was granted earlier for that purpose. Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case but default of the kind mentioned in that rule is committed. Thus the fields of operation of these two rules are distinct and different.

10. It is true that it is not inchmbent upon a Court to dismiss the suit as that rule expressly empowers the court to pass such other orders as it thinks fit, suck as adjourning the case to another date in the interests of justice.

11. There is abundant authority for this proposition. In Pichamma v. Sreeramulu . I.L.R 41 Mad. 286., it was decided by a Full Bench of the Madras High Court that where an adjournment was granted to the defendant to enable him to produce his evidence at the close of the plaintiff's case but he did not appear at the adjourned date of hearing and the Court proceeded to pass a decree against him, that case fell within the purview of Order 17 Rule 2 and the decree may be set aside under Order IX Rule 13. Kumaraswami Sastriar, J. who delivered the leading opinion of the court, remarked that rules 2 and 3 of Order 17 are independent and mutually exclusive and that where the requisites of Rule 2 are satisfied, that rule and not rule 3 should be applied in spite of non-compliance with the requirement of Rule 3, if the parties were absent.

12. Ellammal v. Karupan Chetti . 70-M.L.J 688., rendered by a Bench of the same court is in consonance with this principle. There, the learned Judges ruled that rule 2 of Order 17 deals with a case of non-appearance while Rule 3 relates to a case where no default occurs under Rule 2, but where the default consists in not performing the act for which time was granted on the previous adjourned date.

13. This is also the doctrine of Gurusanthayya v. Setra Veerayya . 1952-II-M.L.J page 1.. The learned Judge has not adverted to any of these ruling though they are said to have been cited to him.

14. Thus, both on the language of the relevant rules and the decided cases, the position is clear that where the parties fail to appear in court, it is open to the court to dismiss the suit for default, the other alternative being to adjourn it to another date. But it is not competent to the Court in the absence of parties to proceed to dispose of the case on the merits, though the defaulting party is also guilty of non-compliance with the requirement of Rule 3. When a suit is dismissed under Rule 2, the appropiate remedy to the aggrieved party is an application for restoration of the suit and not for review. In acceding to the petition for review, the trial court has acted without jurisdiction because the grounds set forth in the petition are not within the words of rule 1, order 47, apart from the dismissal of the suit being in consonance with the relevant provisions of Order 17, C.P.C As such, the order reviewing the original judgment was liable to be set aside. For these reasons, we must hold that the learned Judge's opinion that the trial court rightly granted the review cannot be upheld.

15. If the matter had rested there, we would have allowed the appeal and dismissed the petition for review. But a preliminary objection as to the maintainability of the appeal is raised by the Counsel for the respondent. It is urged that granting review to rectify errors committed by a court is not an appealable ground, and that such an order could be attached only on any of the rounds specified in Order 47 Rule 7. It is only when there is violation of the ??? provisos to rule 4(2) of Order 47 that an appeal could be maintained against an order granting review, continued the Counsel for the respondent.

16. This objection of the respondent is met by the argument that there is general right of appeal against every order granting review and is not restricted ??? cases vitiated by the failure to observe the provisions of rule 4(2) of Order 47 C.P.C

17. For a correct appraisal of the contentions advanced on either side, it is necessary to read the relevant provisions of the Civil Procedure Code.

18. Order 47 Rule 1 enacts:

“Any person considering himself aggrieved and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order.

Order 47 Rule 4 runs as follows:

(1) Where it appears to the court that there is not sufficient ground for a review, it shall reject the application.

(2) Where the court is of opinion that the application for review should be granted, it shall grant the same:

provided that

(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

19. Order 47 Rule 7 in so far as it is of immediate relevancy is:

(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was

(a) in contravention of the provisions of rule 2,

(b) in contravention of the provisions of rule 4 or

(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause.

Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

20. We may look at Order 43 Rule 1:

(1) an appeal shall lie from the following orders under the provisions of Section 104, namely

(w) an order under rule 4 of order 47 granting an application for review.”

21. These provisions were the subject-matter of judicial interpretation by almost all High Courts of India, but first we will try to solve the problems that is posed to us un-hampered by decided cases.

22. While Order 47 Rule 1 talks of the circumstances in which resort could be had to that order, Rule 7 permits objections to be taken to the granting of an application only on the three grounds enumerated therein in clauses (a)(b) and (c). I may be mentioned here that clause (a) has been omitted in 1956 by Section 14(10) of the Code of Civil Procedure (Amendment) Act 66 of 1956. Clause (c) also has no bearing on the present enquiry as the application was presented in court before the expiration of the period of limitation. We are concerned only with the scope and ambit of clause (b).

23. White it is argued on behalf of the respondent that it is only that contravention of the two provisos that would amount to any violation of Rule 4, the stand taken by the appellant is that the granting of a review for reasons other then those set out in rule 1 would constitute a violation of rule 4 and as such, an appeal could be entertained against every order granting review. The learned Counsel for the appellant seeks assistance from Order 43 Rule 1 to substantial his proposition.

24. We are inclined to think that the proposition stated by the Counsel for the appellant could not be sustained on the language of Rule 7 read with rule 4. It is manifest from sub-rule 2 of Rule 4 that the discretion is vested in court to grant review in order to rectify its own mistakes. It is not circumscribed by any limitations except those contained in the two provisos. That being so, it is difficult to predicate that a Court infringes rule 4 when it comes to the conclusion that review should be granted. It is reasonable to assume that in accepting a review petition, the Court is satisfied that there are sufficient grounds. It is only when the specific conditions embodied in the two provisos are violated that it could be said that the Court had committed a breach of Rule 4. Rule 4 does not address itself to the contents of Rule 1. To hold it otherwise would be to import rule 1 of order 47 into rule 7. If that was the intention of the legislature, it would have used appropriate language viz., contravention of rules 1 and 4.

25. In this connection, it is useful to refer to the legislative changes that were introduced when the present Code was enacted. So far as Order 47 Rule 7 which corresponds to section 629 of the old Code is concerned, the changes are not many. The changes are more verbal in nature than the scope of the Section ???, Section 629 spoke of the application being admitted and the admission being objected to while in the present provision it is the order, that is granting the application that could be objected to. We may here mention that the word ‘application’ occuring in the last clause “objected on the ground that the application was etc.” in Rule 7 seems to be inappropriate with reference to clause (b) as it conveys no meaning. The appropriate word would have been ‘order’. Perhaps it was used by the legislature in that sense. However, that is not of much con sequence as that does not in any way affect the interpretation of that rule.

26. The legislature effected a material change in regard to rule 4(2) in the present Code. The section that was equivalent to rule 4 of order 47 was Section 626. The first part of that section is analogous to sub-rule 1 in every respect. Except the fact that ‘if’ in the old section is placed by the word ‘where’ the two provisions are word for word the same. The second part of that section read as follows:

“If the Court be of opinion that the application for the review should be granted, it shall grant the same and the Judge shall record with his own hand his reasons for such opinion”.

27. The last sentence of this paragraph is omitted in the present rule. This omission, in our opinion, is very significant. This makes the object of the legislature clearer that it should be left to the discretion of the court to correct defects of errors committed by it and the grounds which induced the Court to review its order should not be subject to scrutiny in an appeal provided the procedural safeguards are observed by the Court in the process of hearing the application for review.

28. Only two restrictions are imposed on the powers of the Court to review its own judgment. One is contained in the first proviso which gives effect to the doctrine of audi alterum partem. The second limitation relating to the necessity of strict proof bearing on the discovery of new material, etc. is imposed. The reason for the second limitation seems to be that it is an indulgence given to a party to get the previous decision altered on the basis of discovery of important evidence which was not within his knowledge at the time of original hearing. So in the fitness of things, a person, who relies on such circumstances to obtain a review, should affirmatively establish them. The latitude shown to a party by the Court is conditional upon the strict compliance with that requirements. Both the provisos are unconnected with any defects or errors in the judgment of be Court. It is only when the Court disregards there provisions in acceding to the prayer for review that order could be impugned in an appeal. Rule 7 read with rule 4 provisos (a) and (b) defines the limits within which an appeal lies. Consequently, the correction of every error or defect does not form a ground of attack in an appeal.

29. We shall next proceed to examine the question whether order 43 enlarges the grounds mentioned in Order 47 Rule 7 in other words whether it gives an unqualified and unlimited right of appeal. It should be remembered that this was, for the first time, added in the Code of 1908. It is asked why the legislature added this if the intention was not to widen the scope of Rule 7. We feel that the purpose of the insertion of this clause was to confer expressly a right of appeal which was previously implied in Section 629 and no change was contemplated in that behalf. This clause does not mention the grounds of appeal. It should therefore be read a subject to rule 7. We think that this provision which is in general language does not dominate Rule 7 but should be read with it. As such, there is no conflict between the two and, if there is any, it is apparent than real. The result has to be achieve 1 by reading the two sections together.

30. It is a well-settled canon of construction of statutes that the provisions of a statute should be so read as to harmonise one with the other and not to read a repugnancy into them. Even if two enactment appear to be inconsistent, it must be seen that one is a qualification of the other. On the language of the relevant provisions, we have arrived at the conclusion that the granting of an application on grounds foreign to the two provisos of Rule 4 could not be subjected to an appeal. If a Court acts in contravention of Rule 1, i.e, if review is granted on grounds not covered Rule 1 it is open to the aggrieved party to have it revised by a superior court.

31. We will now proceed to examine the judicial precedents to see if they are in accord with the principles enunciated above. We will first take up the decided cases in Madras. The earliest of them brought to our notice is Ramanadhan Chetti v. Naravanan Chetti. The main question that posed itself there was whether it was within the jurisdiction of the trial court to allow a review petition pending an appeal against its decree and judgment and whether an appeal against such an order is sustainable on the ground that the order was passed without jurisdiction. The Division Bench consisting of Subramania Ayyar, Officiating Chief Justice and Benson, J. answered the first question in the negative and the second in the affirmative. The reason for the opinion on the second aspect of the matter was that where an appeal was allowed, the question of jurisdiction was necessarily an appealable ground. It is interesting to note that the learned Judges recognised that Order 47 Rule 7 does not mention want of competence to grant review as one of the grounds for appeal. Further, it is with considerable hesitation that they expressed the opinion that the question of jurisdiction is necessarily an appealable ground as could be seen from the remark.

“Should this view not be correct, it must be held that this court has power to revise the order of the Subordinate Judge in question”.

32. Be that as it may, the learned Judges proceeded on the assumption that lack of jurisdiction to grant review was not within the contemplation of Rule 7 of order 47.

33. Another Bench of the same Court in Gopala Aiyar v. Ramaswami Sastriar struck a different note. It was laid down there that an appeal could be taken only on such of the objections as are specified in Rule 7. The learned Judges followed the rulings of the Allahabad and Calcutta High Courts in that regard.

34. Subsequently that Court had adopted this principle except in one case which will be referred to presently.

35. In Brahmayya v. Vellamma Seshagiri Aiyar and Phillips, JJ. decided that clause (w) did not give a general right of appeal but it was subject to Order 47 Rule 7 and that the fact that reasons for granting the review are satisfactory or insufficient was not a ground which was open to the appellant. The learned judges after referring to the pronouncement of the Privy Council in the matter of the petition of Hadjee Abdoolash Reasut Hossein v. Hadjee Abdoolla . 1876 I.L.R 2 Cal. 131. in which it was observed that the legislature did not contemplate the calculation of degrees of sufficiency, stated:

“The obvious intention of the legislature is that the grounds which satisfied a court that its own judgment requires re-consideration should not be subjected to adverse comment in the court of appeal”.

36. Sreenivasa Aiyar v. Nataraja Aiyar . A.I.R 1916 Mad. 544.. Chokkalingam v. Lakshmanan . A.I.R 1920 Mad. 633. and Govinda Chetty v. Rangammal . A.I.R 1929 Mad. 281. are in consonance with the principle adumbrated in the above cases.

37. This question was discussed at some length again by Odgers and Curgenvan, JJ. in Srinivasa Ayyangar v. The Official Assignee, Madras. The learned judges dealt with the relative ambits of order 43 Rule 1(w) and Order 47 Rule 7 and stated that Rule 7 contained a precise and definite provision allowing an appeal under certain conditions and limiting it to certain matters and that clause (1) of Order 43 is subject to it, consequently no appeal lay against an order granting review if it was not based on any of the grounds recited in rule 7.

38. But in Anantalakshmi v. H.I & F. Trust, a discordant note is struck by chief Justice Rajmannar and Somasundaram. The learned Judges remarked that the preliminary objection, that an appeal was not maintainable as the conditions of Order 47 Rule 7 were not fulfilled and that it was only the order which was in contravention of the provisions of rule 2 or rule 4 that could be attacked in appeal, though plausible and had some support in decided cases “did not appear to them to be invulnerable”. They thought that where the Court grants an application without sufficient grounds for review, it contravenes Rule 4 and that would furnish a sustainable ground of appeal. However they did not think it necessary to decide that question. This dictum is opposed to the long line of cases and we cannot give our approval to it. The weight of authority in Madras is in favour of the principle that an appeal against an order granting review is confined to the grounds mentioned in Rule 7 and that the contravention contemplated by clause (b) bears on the breach of the two conditions set out in rule 4(2).

39. There are only two decisions of our High Court cited to us in this regard One is Narasimhulu Chetty v. Subbarayulu and the other is Mallikarjunappa kalyanashetri v. R.S Patil. In the first of them, I expressed one opinion contrary to the principle enunciated above. I said that clause (b) or rule 7 did not limit the right of appeal to the matters mentioned in the provisos and that an appeal lies against every order allowing an application for review and for this conclusion reliance was placed on Anantalakshmi Ammal v. H.I and F. Trust. For the reasons mentioned above, I feel that this view cannot prevail.

40. The other case accords with the principle adumbrated in Srinivasa Ayyangar v. The Official Assignee Madras and that line of cases.

41. The above rule found acceptance with the erstwhile Hyderabad High Court in Geddam Sita Ram v. Venkat Varada, and in Venkat Narhari v. Narsu Bai.

42. It has been uniformly held in Allahabad that the provisions of Order 47 Rule 7 control Order 43 Rule 1, that an appeal can only be entertained on the grounds set out in Rule 7 that an appeal must be supported only on one or other of the grounds set forth in Order 47 Rule 7 and that the fact that the reasons for allowing a review are out side rule 1 will not sustain an appeal.

43. This view was affirmed in the older case Ali Akbar v. Khurshed Ali, which held that the sufficiency or otherwise of the reasons for granting review could not be canvassed in an appeal against an order accepting a review petition. We do not hear any dissenting voice in the Court. We may cite some of the cases of that Court here. Bonarsi v. Altaff Hussain . 63 I.C 171. Munnu Lal v. Kunj Behari,9 Naraindas Chiranji Lal, Shaukat Ali v. Mt. Shakila Bano, Jaggu Mal v. Brij Lal and Gangaprasad v. Saroof Dei.

44. The same is the case with the Patna High Court. In Keshao Prasad Mandal v. Jamshwar Prasad Mandel. Fazi Ali and James, JJ. held that where review was granted on the ground that there was an error apparent on the face of the record, it could not be challenged in an appeal, since the ambit of an appeal, under Order 47 Rule 7 read with Order 43 Rule 1 is a limited one. To alike effort are the rulings of that court it Jadunandan Singh v. Shankar Sahu, and Ramfal v. Mangal.

45. This principle has gained currency in the Punjab High Court. Also Atra v. Chanjju contains a rule that it is only an infringement of the provisos to Rule 4 that could furnish a ground of appeal. This question received some attention at the hands of Tek Chand, J. in Sikandar Khan v. Baland Khan where the learned Judge, after considering the various aspects of the matter and noticing the earlier decisions of that Court and of the various other High Courts, held that Rule 7 excludes all grounds other than those contained therein for the purpose of an appeal.

46. This is also the purport of Mt. Bakhatan v. Ghulam Hassan . A.I.R 1928 Lah. 608.. See also Keshu Ram v. Bhagwan Das . A.I.R 1934 Lah. 575..

47. That the Rangoon Sind and Oudh High Courts have accepted this principle as correct could be seen from Ma Lon v. Ma Maya May . A.I.R 1939 Ran. 59., Satramdas Kishinchand v. Manghoomal Hakumal,13 Mst. Majidun-Nissa v. Sheikh Anwarullah . I.L.R 18 Luck, 48., and Kilash Naraia v. Rajkumar . A.I.R 1945 Oudh, 183..

48. With the single exception of Mukundas v. Motiram . A.I.R 1929 Nag. 73. where a single Judge Macnair. Ag. C.J said that Order 43 Rule 1 enables a party to appeal on grounds other than those mentioned in Order 47 Rule 7 as there was nothing in the Code which expressly limited the grounds of an appeal under Order 43 Rule 1(w), the Nagpur High Court has expressed the opinion that Order 43 Rule 1(w) is controlled by Role 7 Order 47 and that an appeal against an order granting review could only be supported on one or other of the grounds mentioned in Order 47 Rule 7, an appeal against an order granting review does not lie when it is not accepted on the ground of discovery of new evidence. See Mt. Rakhambai v. Ganapathrao . A.I.R 1932 Nag. 177. Satramdas v. Manghoomal and Karnidan Hansraj v. Askaran Jabak.18

49. We will now consider the rulings of the Calcutta and Bombay High Courts. The current of authority in Calcutta has been in favour of this view beginning with Munni Ram Chaudry v. Prakash Narayani Singh . I.L.R 24 Cal, 878. except for Nritya Gopal Mitra v. Jorit Manjari Dasi . A.I.R 1926 Cal, 217..

50. There are a series of cases of that court in comformity with the afore-mentioned doctrine including Hari Charan Saha v. Baran Khan* . I.L.R 41 Cal, 746., which referred to a number of unreported decisions of that Court. What mainly influenced the Division Bench in that case to come to the conclusion, that it was open to the court to examine the ground upon which the review was granted and if that ground for review did not fall within the meaning of Rule 1, the appellate court could say that the review was improperly granted, was Chajju Ram v. Neki. We fed that the learned Judges made mistake in thinking that Chajju Ram v. Neki, lends any countenance to the theory propounded by them. They overlooked the fact that as the subject-matter of the appeal before the Privy Council was the order made by the Chief Court of Punjab granting review of its own decision. The Privy Council could reverse the order on any ground not mentioned by Rule 7 as their Lordships were not bound by the Civil Procedure Code. Therefore, Chajju Ram v. Neki, could not serve as an authority on the powers of an Indian appellate court under the Code.

51. The scope and ambit of Order 47 Rules 4 and 7 were considered elaborately by a Full Bench of the Calcutta High Court in Sarajubala Gaha v. A.K Ghosh. The reference to the Full Bench was necessitated by Nritya Gopal Mitra v. Jorit Manjari Dasi being in contrast with other decisions of that court. Chakravarti, J., who spoke for the court has pointed out that the referring Judges have adverted to six cases of that court where it has been definitely held that the grounds, open to an appellant, were limited to those specified in Order 47 Rule 7 of the Code of 1908 or Section 629 of the Previous Code, and to three more where to the ground upon which the Court gave its decision, would on close examination, be found to be one of the grounds specified in Rule 7. After a review of the case law on the subject, the Full Bench ruled, inter alia that the grounds available to the appellant are those mentioned in Rule 7 and that the absence of grounds of review specified in Rule 1 is not covered by Rule 7.

52. In the course of the judgment, the learned Judge observed:

“in our opinion, the Legislature, through successive Codes, seems to have left the matter of a review of judgment more and more to the discretion of the Judge. It has enjoined that a review should be granted only in cases where one or more of the grounds specified in the Code exist, but at the same time it has provided that if the Judge himself thinks that his decision should be reconsidered, the exercise of his discretion cannot itself be made the subject of an attack on the ground of the non-existence of sufficient reasons, but it is liable to question only on the ground that some transgression of jurisdiction or gross violation of procedure happened, as when the Judge granting the application, was not the proper Judge to do so, or the application was granted although it was barred by limitation or without notice to the opposite party.”

53. In our opinion this passage sums up the legal position correctly if we may say so with respect. This case seems to hold the field till now in Calcutta.

54. Turning our attention next to Bombay rulings, as far back as the Bombay and Persia Steam Navigation Company v. The S.S Zuri, it was held that no appeal lay from an order accepting an application for review without giving notice to the opposite party or without strict proof of the allegations referred to in proviso (b) and that there was no contravention of the provisions of Section 626, which is equivalent to Order 47 Rule 4 and the Court thought that the review should be granted, the rules laid down in the provisos having been followed. No case under the old Code and which has dissented from this has been cited to us. Our attention was drawn to a judgment of a Bench of that Court in Daso v. Karbasappa, where it was held that the right of appeal conferred by Older 43 Rule 1(w) was not confined to the grounds set out in Order 47 Rule 7 and that the former provision, which was a new one was not perhaps in the minds of the authors when they reproduced the old Section 629 of the 1882 Code in the form of Order 47 Rule 7. The learned judges have remarked that “even if Order 43 Rule 1 Clause (w) is read with Order 47 Rule 7, the only effect of that rule is to enumerate certain grounds on which an order granting a review may be objected to. It cannot exclude all other grounds and as I have pointed out on a strict construction of the two Orders, Order 47 Rule 7 has become superfluous”.

55. With great respect to the learned Judges, we cannot accept the proposition underlying this passage. They overlooked the fact that, while Order 47 Rule 7 says that the order granting an application should be objected to on the grounds recited in that rule, it excludes all other grounds. The rule further lays down that such objection may be taken at once by an appeal from the order granting the application, which denotes that it is only objections within the contemplation of that role that could be taken in the appeal.

56. We also find it difficult to concur with the opinion of the learned judges that Order 47 Rule 7 had become superfluous. It is a well established rule of interpretation of statutes that no provision of an enactment should be regarded as a superfluity. Courts cannot without necessity or sound reason regard any part of an enactment as redundant. They should always incline to the view that every word was intended by the legislature to have some meaning and effect. We are, therefore, unable to subscribe to the theory proposed in that case. Subsequently, the Bombay High Court has deleted clause (w) of Rule 1 by a rule made under Section 122. After the omission of this clause, the Bombay High Court in Shidramappa v. Gurushantappa, laid down that consequent upon the deletion of the clause a review granted on the ground of a clear error on the face of the record, could not be attacked in an appeal since it was done after notice to the opposite party. It was laid down there that rule 7 would have no application to a case where notice to the opposite party was given or where there was compliance with proviso (b) of rule 4(2).

57. We will now refer to the two rulings of the Kerala High Court, Francis v. Ouseph and Santhinesan v. Shankaran Nadar. In the first of the cases, it was held that if a court granted an application without sufficient ground therefor, it contravened rule 4 and as such, an appeal was competent. The learned Judges merely followed Anantalakshmi Ammal v. H.I and F. Trust and Radha Krishna Das v. Beni Madhav. We must say that Radhakrishna Das v. Beni Madhav has not much of a bearing on the applicability of Order 47 Rule 7 read with rule 4 of order 47. As regards Anantalaksmi Ammal v. H.I and F. Trust we have already said that we are unable to agree with the proposition stated therein.

58. In the second case, there is not even a reference to any of the decided cases. All that is said there is;

“The Court having said that the decree holder was negligent, admitted the review on a wrong conception as to the necessity for a notice and we have already stated that notice of the kind referred to by the Judge is not required by law. The order is therefore clearly appealable.”

59. The learned Judges did not say how and why the orders appealable. These two rulings do not appeal to us for the reasons mentioned earlier.

60. We have lastly to examine whether the facts of Bisheswar Pratan Sahi v. Parath Nath which was strongly relied upon by the Counsel for the appellant for the proposition that an appeal lies against every order improperly granting review, established in any way the contention urged on behalf of the appellant. The facts there were these. The plaintiffs sued for a declaration that they were entitled to the properties in dispute under a relinquishment deed executed by a Hindu widow and hence they could not be attached in execution of a decree obtained against her. Having come to the conclusion that the document was fraudulent and invalid, the subordinate judge dismissed the suit. Thereafter the plaintiffs sought a review of that judgment, grounding it upon the death of the widow on the day before or the day on which the judgment was delivered. The trial court acceeded to the prayer, overlooking the fact that the suit as originally framed was based on the relinquishment deed. An appeal by the aggrieved defendants was dismissed by High Court which rejected the contention that the decree was in respect of money obtained by the widow for legal necessity, was binding upon the hands of the respondents. The matter was carried in appeal to the Privy Council. The decisions of the courts in India were reversed by their Lordships for the reason that the judgment of the trial court was reviewed on a ground outside the pale of rule 1 while restoring the original judgment of the subordinate judge their Lordships disallowed costs of the successful appellants on the ground that the objection on which they had succeeded had not been relied upon in the High Court, though it seems to have been raised in the grounds of appeal.

61. The point presented on the basis of this judgment is that in effect the Privy Council decided that if a review which is not warranted by rule 3, is granted, objection could be taken in appeal. We do not think that such a result could be ascribed to that ruling. For one thing, their Lordships were considering an appeal against a decree passed after review. Secondly, it is clear that the question was not argued before them. Neither the judgment for the report of the arguments contain any indication that any question was raised or considered as to the ambit of the objections to an order granting review which are available to an appellant under the provisions of the Code. It is only while disallowing costs that their Lordships remarked that the objection that the trial court acted erroneously in reviewing its judgment was not pressed in the High Court. It is worthy of note that the point as to want of competence of the subordinate judge to accept the review petition was not debated before them. Their Lordships of the Privy Council were concerned only with the contention as to the jurisdiction of the court to review its judgment. They merely discussed the question whether a court could exercise the jurisdiction to review its judgment on grounds other than those prescribed in rule 1. We do not think their Lordships intended to over-rule the large body of Indian decisions without giving any consideration to them.

62. Finally, our opinion Based on the relevant provisions of the Code and the decided cases is that it is only the disregard of the two provisos of rule 4 of order 47 that is within the contemplation of rule 7(b) of order 47 and that very contravention of rule 1 cannot furnish a ground of attack in an appeal against that order, such as an error apparent on the fact of the record or insufficiency of grounds.

63. In these circumstances, the preliminary objection prevails and the appeal is incompetent. For these reasons, we must dismiss the appeal but as this objection was not raised before the learned Judge and the appeal is being dismissed for reasons altogether different from those mentioned by the learned Judge, we direct the parties to bear their own costs here and before the learned Judge.

L.P.A No. 83 of 1959 is also dismissed.

Appeals dismissed.