Macleod, C.J:— (After stating facts, the judgment proceeded). Under O. 43, R. cl. (w), an appeal lies against an order passed under O. 47, R. 4, granting an, application for review. It was argued, however, that the grounds of appeal are, limited by the terms of O. 47, R. 7. That R. 7 was S. 629 in the Code of 1882. Under that Code there was no right of appeal against an order granting a review, only as provided for by S. 629—such an order might be objected to on the grounds stated therein. When by, the Code of 1908 a right of appeal against an order granting a review was given, it would appear that the provisions of S. 629, which became O. 47, R. 7, were not sufficiently reconsidered. Once the right of appeal was given that right could only be restricted by direct prohibition. If O. 47, R. 7, had directed that an appeal against an order granting an application for review, which lay by virtue of O. 43, R. 1, Cl. (w), would not be permitted except on the grounds mentioned in that rule, then the right of appeal already granted would have been restricted. But O. 47, R. 7, only says that an order granting an application for review may be objected to on certain grounds. The result of making such an order appealable was that O. 47 R. 7 became superfluous.
2. It was no longer necessary to say that an order refusing an application for review was not appealable, while an order granting an application for review had been made an appealable order.
3. In Hari Charan Saha v. Baran Khan(1) the contrary was held. The Judges there said (p. 747):
“Order 47, R. 7 of the CPC, provides that an order rejecting an application for review shall not be appealable, but that an order granting such an application may be objected to on certain grounds. None of those grounds can be asserted in this case, and it is quite clear that, in so far as R. 7 of O. 47 goes, no appeal lies. But it is contended that an appeal lies under O. 43, R. 1, Cl. (w), which provides in general terms for an appeal against an order under R. 4 of O. 47 granting an application for review. It has on at least three occasions, been held by this Court that O. 43, R. 1, Cl. (w), must be read with, and subject to, R. 7 of O. 47. We refer to the unreported decisions in Jugernath Pershad Singh v. Ram Autar Singh; Tripura Charan Kal v. Sorashi Bala and Surendra Nath Taluqdar v. Sita Nath Dass Gupta. Following those three decisions, we must hold that this appeal is incompetent and should be dismissed with costs.”
4. In my opinion even if O. 43, R. 1, Cl. (w), is read with O. 47, R. 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, O. 47, R. 7, has become superfluous.
5. I may add that even assuming that an appeal was not competent the Court would have entertained an application under S. 115 of the Code.
6. Madgavkar, J.:— (concurred with the Chief Justice and added.) As regards O. 43, R. 1, Cl. (w), and O. 47, R. 7, I entirely concur with what has fallen from my lord the Chief Justice. O. 43, R. 1, Cl. (w), is a new provision, and was perhaps not in the minds of the authors when they reproduced the old S. 629 in the form of O. 47, R. 7.
7. I agree, therefore, with the order proposed.
8. Appeal allowed.