Kunversi Ratansi Patel vs Pitamberdas Ramdas

Crump, J.—This is an appeal against an order by the First Class Subordinate Judge at Ahmedabad granting a review of a judgment. The facts shortly are that on July 23, 1926, the Court upon the evidence came to the conclusion that the defendants in the suit were not agriculturists. There was then an application to review that decision, and the Court granted that application on the ground that there was a mistake or error apparent on the face of the record. Though other grounds were suggested in the application, it is plain that it was on that ground alone that a review was allowed. From that order an appeal is made to us, and a point arises whether any such appeal lies or not.

The appellant''s counsel bases his right of appeal on Order XLIII, Rule 1, Clause (w), but it has unfortunately escaped the attention of the bar that that clause of Order XLIII, Rule 1, has been deleted by a rule made by this High Court in exercise of the powers conferred by Section 122 of the Code of Civil Procedure. That rule was published in the Bombay Government Gazette on March 11, 1926, and must be taken to have been in force at least from that date. Therefore Order XLIII, Rule 1, Clause (w), cannot help the appellant, and the decision of this Court in Daso Keshav Panohbhavi Vs. Karbasappa Kariyappa Mudhol, can no longer be supported on the grounds on which it was based.

We must fall back, therefore, on the provisions of Order XLVII and any appeal against the order granting review must be conditioned by the provisions of that Order. Rule 7 of that Order lays down three cases and three only in which an appeal is available, and it does not appear that the present matter falls under any one of these three cases. The first deals with a contravention of Rule 2 which lays down to whom applications for review are to be made. Clearly that does not apply here as the review was granted by the Judge who himself made the previous order. The second case is where there has been a contravention of Rule 4. That rule requires that there shall be previous notice to the opposite party and that where the application is granted on the ground of discovery of new matter or evidence there shall be strict proof that such new matter or evidence was not within the power or knowledge of the party who seeks to rely upon it. That has no application here. The third case is where the application for review has been granted after the expiry of the period of limitation, and that too clearly does not apply in the case before us. It thus appears that no appeal lies in the present matter, and whatever view we may take as to the proceedings of the learned Subordinate Judge, they cannot be challenged before us in the form of an appeal.

We have been asked to deal with this matter as coming u/s 115 of the Code of Civil Procedure. No doubt we have a wide discretion in such cases, but it might be doubted whether this is a decided case within the meaning of that section. And apart from that we do not think that it is a matter in which we should interfere. The finding as to the status of an agriculturist is not appealable in itself, and that being so, it would be, we think, inexpedient to interfere with an order which is not appealable (see Rupchand v. Bhogilal (1925) 28 Bom. L.R. 307 by having recourse to our exceptional powers u/s 115. The appellant will have an opportunity to raise the question of status should he find it expedient to appeal against the final decree. For these reasons the appeal must be dismissed with costs.