Nand Kishore Lal vs Emperor

Coutts, J.—The learned Government Advocate raises a preliminary point that I have no power to review my order of the 11th March 1919 and in support of his contention he refers to the rulings in F.W. Gibbons, In re 14 C. 42 (F.B.) : 7 Ind. Dec. (N.S.) 29, Queen-Empress v. C.P. Fox 10 B. 176 (F.B.) : 5 Ind. Dec. (N.S.) 502 and Queen-Empress Vs. Durga Charan, . In the first case cited it was held by a Full Bench of the Calcutta High Court that a verdict and judgment of a Division Bench of the High Court was final and that as soon as they had been pronounced and signed, neither the Court nor any Bench of it had power to revise the decision or to interfere with it in any way. In Queen-Empress v. C.P. Fox 10 B. 176 (F.B.) : 5 Ind. Dec. (N.S.) 502 it was held that a Division Bench of the High Court had no power to review its judgment pronounced in revision in a criminal case and the decision was the same in the case of Queen-Empress Vs. Durga Charan, . In each of these cases it was a judgment of a Division Bench of the High Court which was in question, and it is not contended by Mr. Sinha for the petitioner that this view of the law is not correct but be relies on the case of Bibhuty Mohun Roy v. Dasimoni Dassi 3 Ind. Cas. 393 : 10 C.L.J. 80 : 10 Cr. L.J. 287, in which it was held by a Bench of the Calcutta High Court that where a case had been disposed of in default of appearance, the Court had power to restore the case and to hear and determine it, and he argues that the order of the 11th March 1919 cannot be taken to be a judgment. I am unable to accept this argument. The application was dismissed, not merely because no one appeared on behalf of the petitioner, but because it was pointed out by the learned Government Advocate that more than two months had elapsed since the date of the order which had been passed u/s 144, Criminal Procedure Code, and that, therefore, the order was no longer in force. Whether this view was right or wrong does not affect the matter. The point is that the dismissal was not merely on account of non-appearance but for another reason also. The order, therefore, although it does not dispose of the application on the merits, is a judgment. The case relied on by Mr. Sinha was one in which the application was dismissed purely and simply for default, and it does not apply to the present case. I may remark, however, that the view which was taken in that case has been dissented from by a Full Bench of the Madras High Court in the case of B. Ranga Row Vs. Emperor, . In that case it was held that no distinction can be made between an appeal in which an order is passed without hearing and one in which there is a hearing and that even where a revision petition has been dismissed for default, a High Court cannot review its order. There is thus some doubt even in the case of a revision application which is dismissed for default, but the question does not really arise because as I have already pointed out this application was not dismissed only for default. This application for review and for restoration of the case is, therefore, rejected.