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  • provisions of article 173 of the first schedule to the Indian Limitation Act.
  • article 173 of the first schedule to the Indian Limitation Act, No. IX of 1908,
  • clause (1)(a) and (b) of rule 7, order XLVII, of the Code of Civil Procedure.
  • provisions of article 4 of the first schedule to the Court Fees Act,
  • provisions of order XLVII, rule 1, of the Code of Civil Procedure
  • clause (c) of order XLVII, rule 7(1), of the Code of Civil Procedure.
  • rule 1(a) and order XLVII, rule 7, of the Code of Civil Procedure,
  • sections 151, 152, and 153 of the Code of Civil Procedure.
  • SECTION 5 INDIAN LIMITATION ACT
  • SECTION 5 LIMITATION ACT
  • XLVII, rule 1, of the Code of Civil Procedure
  • XLVII, rule 7, of the Code of Civil Procedure
  • section 115 of the Code of Civil Procedure.
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Citation Codes
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citation codes
Case Number
Attorney(S)
Judges
Acts
  • provisions of article 173 of the first schedule to the Indian Limitation Act.
  • article 173 of the first schedule to the Indian Limitation Act, No. IX of 1908,
  • clause (1)(a) and (b) of rule 7, order XLVII, of the Code of Civil Procedure.
  • provisions of article 4 of the first schedule to the Court Fees Act,
  • provisions of order XLVII, rule 1, of the Code of Civil Procedure
  • clause (c) of order XLVII, rule 7(1), of the Code of Civil Procedure.
  • rule 1(a) and order XLVII, rule 7, of the Code of Civil Procedure,
  • sections 151, 152, and 153 of the Code of Civil Procedure.
  • SECTION 5 INDIAN LIMITATION ACT
  • SECTION 5 LIMITATION ACT
  • XLVII, rule 1, of the Code of Civil Procedure
  • XLVII, rule 7, of the Code of Civil Procedure
  • section 115 of the Code of Civil Procedure.
Smart Summary

Judicial Opinion Summary — Piggott, J.

Factual and Procedural Background

The plaintiffs brought a suit for possession of specified property, mesne profits and certain other monetary claims. The trial court (Subordinate Judge of Basti) partly decreed and partly dismissed the claim. The plaintiffs executed that portion of the decree which was in their favour and then applied for a review of the judgement; their application was allowed by the Subordinate Judge. The review resulted in an amended decree: a declaration for a particular item of property was substituted for the earlier dismissal of that claim, additional mesne profits were decreed in the plaintiffs' favour, and a small monetary item previously dismissed was also awarded to the plaintiffs.

The defendants had a conventional right of appeal from the amended decree but instead challenged the order granting review of judgement by preferring an appeal under order XLIII, rule 1(a) and order XLVII, rule 7, Code of Civil Procedure, before the District Judge of Gorakhpur. The District Judge admitted that appeal. The present proceeding is an application in revision against the District Judge's order admitting the appeal. The central procedural question before Piggott, J., is whether the plaintiffs (then applicants before him) have brought their case within the scope of section 115 of the Code of Civil Procedure.

Procedural irregularities on the record: the Subordinate Judge delivered judgement on 2 December 1914 and subsequently on 23 December 1914 reaffirmed judgement and directed a decree; two decrees dated 2 December and 23 December 1914 appear on the record. This multiplicity of dates was held to have been capable of misleading the plaintiffs regarding limitation periods for appeal or for filing a review application.

Legal Issues Presented

  1. Whether the applicants (plaintiffs) have brought their case within the purview of section 115 of the Code of Civil Procedure in seeking revision of the District Judge's order admitting the appeal.
  2. Whether the District Judge erred in admitting an appeal against the order granting review of judgement, when the memorandum of appeal did not invoke the grounds set out in clause (1)(a) and (b) of rule 7, order XLVII, CPC, and whether clause (c) of rule 7(1) (limitation/insufficient cause) was properly raised or decided.
  3. Whether the application for review was barred by limitation under article 173 of the first schedule to the Indian Limitation Act, No. IX of 1908, or whether section 5 of the Limitation Act applied to excuse delay and justify admission of the review application.
  4. Whether the Subordinate Judge's exercise of discretion under order XLVII, rule 1 (the words “for any other sufficient reason”) was such that an appeal under rule 7 should have been entertained.
  5. Whether the District Judge ought to have examined and decided whether the strict conditions in order XLVII, rule 7 for interfering with an order granting review of judgement were fulfilled before reversing the Subordinate Judge.

Arguments of the Parties

Plaintiffs' (Applicants') Arguments

  • The plaintiffs applied for review because (a) there was an error apparent on the face of the record: the original decree dismissed a small monetary claim which the defendants had admitted in their written statement; and (b) the Subordinate Judge had overlooked a paragraph in the plaint containing a general prayer for alternative relief (such as a declaration) which meant the claim for a share in an immovable property might properly have been granted as a declaration rather than dismissed.
  • The plaintiffs drew the Subordinate Judge's attention to a reported decision of the Court in which, on substantially similar facts, a decree for declaration of title and mesne profits had been granted.
  • Implicit (from result): plaintiffs relied on the Subordinate Judge's power to correct an error apparent on the face of the record and on the broad discretion conferred by the phrase “for any other sufficient reason” in order XLVII, rule 1, CPC.

Defendants' Arguments

  • The defendants challenged the review application on the ground that it had been presented after the prescribed period of limitation and therefore should not have been admitted.
  • They contended the Subordinate Judge granted review without sufficient cause.
  • After the District Judge admitted the appeal, on revision it was argued that the revisional court should not upset the District Judge's decision merely because the revisional judge considered the limitation point to have been incorrectly decided; the defendants urged deference to the lower appellate decision.
  • The defendants relied upon the restrictive scope of appeals against orders granting review under order XLVII, rule 7, CPC, contending that the conditions for interference in appeal had to be strictly satisfied.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded by examining both procedural and substantive aspects as they appeared on the record, guided by the statutory framework cited in the opinion (Code of Civil Procedure provisions and the Limitation Act).

1. Scope of Revision and Central Question: The judge observed that no second appeal lay against the District Judge's order; hence the only question in revision was whether the plaintiffs' case fell within section 115, CPC. The court framed its inquiry around whether the District Judge properly admitted an appeal under order XLVII, rule 7.

2. Nature of the Review Granted and Appeal Rights: The court noted the defendants had an ordinary appeal from the amended decree but instead chose to appeal against the order granting review. The statute (order XLVII, rule 7) narrowly limits appeals from orders granting review; the legislation contemplates that a court will review its own judgement only when satisfied of prior error, and the discretion to grant review should not be lightly interfered with on appeal except on the specific grounds enumerated by rule 7.

3. Defects in the Memorandum of Appeal: The memorandum of appeal presented to the District Judge did not challenge the order granting review on the grounds of clause (1)(a) and (b) of rule 7, order XLVII. It did raise (a) that the review application was presented after the expiry of the prescribed period and (b) that the review was granted without sufficient cause. The court observed that it was at least arguable whether the memorandum validly invoked clause (c) of rule 7(1) (i.e., that application was after the prescribed period and admitted without sufficient cause), but the District Judge had not decided that point.

4. Limitation Question: The Subordinate Judge dismissed the objection to limitation, apparently because the application for review had been presented after the 90th day from the decree but stamped with the full fee under article 4 of the first schedule to the Court Fees Act, No. VII of 1870, and thus he thought no limitation question could be raised. The revising judge found this reasoning arguable and expressed hesitation in treating article 173 of the Limitation Act as subordinate to anything in the Court Fees Act.

5. Inherent Power and Sections 151–153 CPC: The court acknowledged that the inherent power of a court to amend its manifest errors is recognized by sections 151, 152 and 153, CPC, and that the Subordinate Judge's review application raised two distinct matters: (i) an error apparent on the face of the record relating to a small monetary claim admitted by the defendants but dismissed in the original decree, and (ii) a more debatable question whether the plaintiffs could, by reference to a general prayer, obtain a declaratory decree for a share of immovable property.

6. Discretion under Order XLVII, Rule 1 and Rule 7: The judge accepted that the phrase “for any other sufficient reason” in order XLVII, rule 1, confers a wide discretion on the court and that rule 7 does not permit an appeal from every exercise of that discretion. The Subordinate Judge may have concluded that, having found some error warranting correction, he was entitled to address the related debatable question as part of the same matter.

7. Irregularity in Decree Dates and Application of Section 5 Limitation Act: The court found a procedural irregularity—two decrees dated 2 December and 23 December 1914—could have misled the plaintiffs as to limitation periods. The court held that this was a case where section 5 of the Limitation Act (which refers to appeals and applications for review) was applicable to excuse delay and justify admission of the review application. The judge concluded that the Subordinate Judge's admission of the review application could be supported on the ground that there were clearly sufficient reasons for admitting it on the date it was presented.

8. Role of the District Judge: The District Judge had treated the limitation point as disposing of the matter by finding the review application plainly beyond time under article 173, but he had not addressed whether the conditions in rule 7 were satisfied. The revising judge considered that failure to decide whether the specific conditions for appeal under rule 7 were fulfilled justified setting aside the District Judge's order and remitting the matter; however, after hearing parties and reviewing the record, the judge elected to decide the matter finally in the interests of the parties.

9. Practical Disposition: Considering the error in the original decree and the misleading duplication of decree dates, the court regarded the application of section 5 as appropriate and concluded that the Subordinate Judge had sufficient grounds to admit the review application. Therefore, the revising court found it unnecessary to remit the appeal for consideration and disposed of the question finally.

Holding and Implications

Holding:

The decree of the court below (the District Judge's order admitting the appeal) is set aside, and in lieu thereof the court passes a decree dismissing the appeal against the order of the Subordinate Judge granting review of judgement, with costs in this and in the lower appellate court.

Implications and Consequences:

  • The Subordinate Judge's order granting review of judgement is effectively sustained by this court's disposition (the appeal against that order is dismissed).
  • Costs are awarded to the plaintiffs in this court and in the lower appellate court.
  • The court emphasized that, if the defendants wish to challenge the amended decree (as opposed to the order granting review), any subsequent petition of appeal presented on valid pleas of law or fact should be approached liberally with reference to section 5 of the Limitation Act so as to afford the defendants an opportunity to have the more debatable question raised on review decided on the merits.
  • No new legal precedent is declared; the decision resolves the parties' dispute on the record and applies existing statutory provisions (Order XLVII rules, Limitation Act section 5, article 173) to the facts before the court.
Order set aside.

This summary is based exclusively on the contents of the provided opinion and does not add or infer information not contained therein.

    Khurshed Alam Khan v. Rahmat-Ullah Khan

    Piggott, J.:— This is an application in revision against an order, of the District Judge of Gorakhpur admitting an appeal, presented under order XLIII, rule 1(a) and order XLVII, rule 7, of the Code of Civil Procedure, against an order of the Subordinate Judge of Basti granting an application for review of a certain judgement and decree of his own court. No second appeal lies against the order of the District Judge, and the only question which I have to consider is whether the applicants now before me, who were the plaintiffs in the suit, have brought their case within the purview of section 115 of the Code of Civil Procedure. The facts of the case are somewhat peculiar. The plaintiffs' claim was one for possession of certain property, together with mesne profits and certain other sums of money claimed as due to the plaintiffs under their cause of action. The claim was partly decreed and partly dismissed, and as a matter of fact the plaintiffs took out execution of the decree to the extent to which it was in their favour. They subsequently applied for review of judgement and their application was allowed. The result of the review was that a declaration in their favour in respect of a certain item of property was substituted for the order dismissing their claim in respect of that property altogether which appeared in the original decree. Consequently upon this order there was a further decree in favour of the plaintiffs for a certain sum as mesne profits. There was also added to the decree an award in favour of the plaintiffs in respect of another small item of money, their claim to which had been dismissed in the decree as originally framed. It must be remembered that the defendants had a right of appeal against the amended decree: if that decree was wrong in law, or inequitable on the facts, the error could have been set right by the District Judge in a regular appeal from the decree. The defendants, however, elected to exercise their alternative right of appeal against the order granting review of judgement. Now this right has been rigidly limited by the provisions of order XLVII, rule 1, of the Code of Civil Procedure to certain very narrow grounds. The reasons for the limitations thus imposed upon the right of appeal from an order granting a review of judgement are obvious. A court presumably only reviews a previous judgement of its own when it is satisfied that its previous judgement was wrong and unfair to one of the parties. If the judgement as passed upon review is in error, an appeal lies against it, as has already been pointed out. Consequently the Legislature does not intend that the discretion of a court in the matter of granting a review of its own judgement should be interfered with in appeal, except on the specific grounds set forth in order XLVII, rule 7, of the Code of Civil Procedure. The petition of appeal presented to the District Judge did not challenge the order granting review of judgement on any of the grounds set forth in clause (1)(a) and (b) of rule 7, order XLVII, of the Code of Civil Procedure. There was a plea that the application for review had been presented to the Subordinate Judge after the expiration of the period prescribed therefor. There was also a plea that the first court had granted review of its judgement without sufficient cause; but it seems to me that it is at least open to question whether the memorandum of appeal presented to the District Judge can be regarded as challenging the order granting review of judgement on the ground that the application had been made after the expiration of the period of limitation prescribed therefor and that it had been admitted without sufficient cause. That seems to be the meaning of clause (c) of order XLVII, rule 7(1), of the Code of Civil Procedure. At any rate the District Judge has not decided this point. The question of limitation has not been dealt within a very satisfactory manner by either of the courts below. The learned Subordinate Judge merely takes note of the fact that the defendants have challenged the application for review of judgement on the ground of its having been presented after the expiration of the prescribed period of limitation and he remarks that there is no force in this objection. I think the learned Subordinate Judge was of opinion that, because the application for review had been presented after the 90th day from the date of the decree under the provisions of article 4 of the first schedule to the Court Fees Act, No. VII of 1870, no question of limitation could be raised in respect of it. I think this points is a very arguable one. I should feel considerable hesitation in holding that the plain words of article 173 of the first schedule to the Indian Limitation Act, No. IX of 1908, could be interpreted subject to anything contained in the Court Fees Act. On the other hand, nothing in the Limitation Act can be treated as limiting the inherent power of a court to amend its own manifest errors, which is now expressly recognized by sections 151, 152, and 153 of the Code of Civil Procedure. As a matter of fact the application for review presented to the learned Subordinate Judge raised two distinct points. It called attention to what was unquestionably a mistake or error apparent on the face of the record, in that the decree as originally framed operated to dismiss the plaintiffs' claim for a certain small sum of money in respect of which the defendants had admitted liability in their written statement. In the second place it raised a more debatable question, in that it asked the learned Subordinate Judge to reconsider his decision dismissing altogether the plaintiffs' claim in respect of one of the items of immovable property specified at the foot of the plaint. The order of dismissal had been passed on the express ground that the plaintiffs claimed possession of a specified share of the said property, and had not sought either a decree for joint possession to the extent of their share, or relief by way of declaration. The plaintiffs now took leave to point out to the Court that its decision apparently overlooked a paragraph of the plaint in which there was a general prayer for such alternative relief as the court might consider suitable to the ascertained facts. The plaintiffs at the same time drew the attention of the Subordinate Judge to a reported decision of the Court in which a decree for a declaration of title and for mesne profits had been granted on a state of facts substantially similar to those which the plaintiffs had established in the present suit. The learned Subordinate Judge granted a review on both points. It is certainly arguable that the latter of those two points cannot, without some straining of language, be regarded as a mistake or error apparent on the face of the record. At the same time the discretion conferred upon a court by the words “for any other sufficient reason” in order XLVII, rule 1, of the Code of Civil Procedure is a wide one, and rule 7 of the same order does not provide for a right of appeal against the exercise of such discretion. In the present case, moreover, the learned Subordinate Judge found himself compelled to make one alteration in the decree passed by him, and he may well have considered that being thus seised of the whole matter he was entitled to take a liberal view of the extent of his jurisdiction in respect of the other question raised. The learned District Judge in appeal seems to have assumed that the first court had entirely overlooked the provisions of article 173 of the first schedule to the Indian Limitation Act. He has remarked that the application for review was clearly beyond time under the provisions of that article and has treated this finding as disposing of the entire question. On behalf of the defendants it has now been contended before me that I ought not to interfere with the decision of the court below merely on the ground that it scums to me to have taken an erroneous view of the question of limitation. To this I should be prepared to accede; but the objection to the decision of the learned Judge is that he has reversed the order of the first court without coming to a finding that the auditions laid down by order XLVII, rule 7, of the Code of Civil Procedure as justifying interference in appeal with an order granting a review of judgement were completely fulfilled. He has not considered at all the question whether the application for review was or was not made after the expiration of the prescribed period without sufficient cause. I think that on this ground I should be justified in setting aside the order of the court below and sending back the appeal to be disposed, of on the merits. After, however, having heard the parties at some length and fully examined the record before me, it seems to me useless to do this, and that the question of the order of the Subordinate Judge granting review of judgement should in the interests of the parties concerned be disposed of now once and for all. As a matter of fact there had been an error committed by the first court in the passing of its first decree which was eminently calculated to give trouble at a subsequent stage in the event of any question of limitation being raised. According to the order sheet in the case, the learned Subordinate Judge delivered his judgement in the presence of the parties on the 2nd of December, 1914, and, an application for a copy of the judgement and decree was actually presented on the following day. In the meantime, however, the court seems to have come to the conclusion that something further required to be done, or some document required to be inspected before a final decree was passed, and it fixed the 23rd of December, 1914, for further consideration of the case. On that date it re-affirmed the judgement previously delivered and directed a decree to be prepared accordingly. The result was that two decrees seem to have been drawn up. At any rate I find two decrees on the record: one dated the 2nd of December, 1914, and the other dated the 23rd of December, 1914. Such a procedure was obviously calculated to mislead the plaintiffs and to lead them into error as to the period available to them, either for presentation of an appeal or for presentation of an application for a review of judgement. If they could be allowed to calculate the period of limitation from the 23rd of December, 1914, and at the same time to add to the period necessary for obtaining a copy of the decree, the interval between the 3rd and 23rd of December, 1914, during which their application for copy prematurely presented was lying in the copying department of the court, they would actually bring themselves within the limitation period. I do not say, that this could be permitted; but it does seem to me that this was a case for the application of the provisions of section 5 of the Indian Limitation Act, which, let it be observed, refer to an application for review of judgement as well as to appeals. If the learned Subordinate Judge, in admitting the application for review, had relied on section 5 above mentioned. I do not think any question of limitation could possibly have been raised at any subsequent stage. That he did not do this in express terms may possibly have been due to the fact that he thought it unnecessary, and was more probably due to the view he took of the law of limitation applicable to an application for review of judgement stamped with the full fee payable. At any rate he did admit the application, and as there were in my opinion clearly sufficient grounds for its admission on the date on which it was presented, I do not think that any good purpose would be served by allowing, this question of the review of judgement to be further litigated between the parties. I only wish to add that, if the defendants should be advised even now that an appeal is maintainable against the decree as amended, or against any part of that decree, on any valid plea of law or of fact, I think that any court to which such petition of appeal is presented would be well advised to take a liberal view of the provisions of section 5 of the Limitation Act as applicable to the particular circumstances of this case, and as far as possible, allow the defendants an opportunity, should they desire it, of having the more debatable of the two questions raised by the application for review of judgement finally decided on the merits. Subject to these remarks, I set aside the decree of the court below and in lieu thereof pass a decree dismissing the appeal against the order of the Subordinate Judge granting review of judgement, with costs in this and in the lower appellate court.

    Order set aside.

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    Khurshed Alam Khan v. Rahmat-Ullah Khan
    (Jul 28, 1917)