Bankey Behari Lal and Another vs Abdul Rahman and others.
Bankey Behari Lal and Another vs Abdul Rahman and others; area of law under the case are Code of Civil Procedure (Act V of 1908) rules 4 and 7 and order XLIII, rule 1(w) Review Appeal, Section 151 of Code of Civil Procedure.
The facts that have led up to this appeal and application for revision may be briefly stated:-
On the 5th. of January 1929, two individuals, Abdul Rahman and Sabit Ali instituted a suit for pre-empition in respect of a sale deed for Rs. 75,000. They said "that the real price paid was only Rs. 68,000 and claimed a decree for pre-emption on payment of that amount. On the 4th of September, 1929, It was decided in the proceeding before Subordinate Judge that both the parties to the suit have agreed to compromise by firstly stating the amount of Rs 77000 which was required to pay within 10 days ie by 12th of November 1929, it was stated that id the amount is paid within prescribed time then the decree of pre-emption will be made in the favor of Plaintiff. And in case of default in payment, the suit will be dismissed with cost on the parties.
The pre-emption money was not deposited by 12th November 1929. thus on 20th of November 1929, Mr. Abdul Rahman filed an application under section 151 of the Civil Procedure Code contending that the said compromise was never accepted by them and the proceedings of the court should be resumed . on this the Subordinate Judge after hearing on 22nd of November dismissed the application by stating that section 151 does not apply . on this on 28th of November the plaintiff made an application for review of the order, in which he stated that the said application rejection is not in accordance with law as they were not given a chance to be heard and that the court was wrong in holding that section 151 was not applicable.
The learned Subordinate Judge issued a notice of this application to the opposite party but before it could be taken up for hearing, he was transferred and the application was heard by his successor, Mr. Khurshed Husain, who on the 25th of September, 1930, granted the application for review as well as the application under section 151 of the Code of Civil Procedure, set aside the decree dated the 4th of September, 1929, and ordered the suit to be restored to its original number and to be proceeded with from the same stage at which it was left on the date when the decree was passed on foot of the compromise in question.
The question that was considered was the passing of the order by the Subordinate Court in the chamber without the parties being present. As well as whether the defendant's appellants have an unrestricted right to appeal against the order granted.
It was contended by the court that an order under rule 4 of Order XLVII, granting an application for review’ ’ and does not impose any restriction as regards the grounds which the appellant is entitled to urge in support of his appeal. We are of opinion that the provisions of Order X L III, rule 1 clause [w), must be read with the provisions of Order XLVII, rule 7(1) of the Code. This was sufficient to hold that the application under section 151 does not apply . under this the reliance was put upon the judgments of Devendra Nath Sarkar v. Ram Rachpal Singh and Mohammad Raza v. Ram Saroop.
Therefore, it was held that the order of the lower court is correct and the appeal' and the application for revision must fail and are dismissed with costs.