TMI Blog1934 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... fit to be attached and sold by auction in execution of decree passed by the Subordinate Judge of Benares in case No. 129 of 1923Dulhin Radhe Dulari Kunwar, plaintiff v. Musammat Chhunni and Ors., defendantsLaid at ₹ 7,737-10-0. (b) All the costs of the suit may be charged to defendant No. 1. (c) In addition to or in place of the relief aforesaid any other relief to which the plaintiffs maybe found entitled in the opinion of the Court may be granted to the plaintiffs. 4. The following pedigree shows the relationship of the plaintiffs and the second and third defendants: BISHAMBHAR PANDA=Mst. CHHUNNI. (died about 1894). (Defendant No. 2.) .. : : Mst. Shiam Sundar. Narain (Defendant No. 3.) (died childless, : March 26, 1902). : His widow predeceased : him. Mst. Chandra Kunwar. : : .. : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 1924, an application was made on behalf of the plaintiffs in the present suit to set aside the attachment. This application was refused on January 26, 1924. 13. Consequently, on February 25, 1924, the plaintiffs instituted the present suit, the parties to which and the prayers in which have already been stated. 14. The suit was based upon the said deed of relinquishment of December 14, 1923, executed by Musammat Chhunni, by reason of which it was alleged the plaintiffs had become absolute owners in possession of the said property. 15. It was alleged in the plaint that Musammat Shiam Sundar never had any title to the property in question. 16. The first defendant in the present suit, viz., Musammat Dulhin defended the suit. In her written statement she alleged, among other matters, that the said deed of relinquishment of December 14, 1923, was without consideration, that it was fraudulent, null and void, and that it was contrary to the provisions of Sections 52 and 53 of the Transfer of Property Act. 17. The Subordinate Judge, who tried the suit, by his judgment delivered on December 22, 1924, held that the said deed was on the face of it fictitious and fraudulent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t effect. The learned Judge held that this claim could not be supported, yet the order made by him was that the claim of the plaintiffs should be decreed. 22. It does not appear that the question whether the Subordinate Judge, under the provisions of Order XLVII, Rule 1, had any right to review his judgment and decree on the above-mentioned grounds, was raised on the hearing of the application for review. 23. Musammat Dulhin appealed to the High Court, and one of the grounds appeal was that the suit was rightly dismissed and that the Sub-ordinate Judge acted erroneously in reviewing his judgment. 24. Judgment in the appeal was delivered on April 30, 1930. The learned Judges dealt with the question whether Musammat Dulhin, having obtained a money decree only against Musammat Chhunni, could proceed in execution against the properties in suit which had come into the possession of the plaintiffs as the next reversioners on the death of Musammat Chhunni. 25. They decided against the appellant on that question and dismissed the appeal with costs. 26. There is nothing in the judgment to indicate that the above-mentioned question whether the Subordinate Judge had any right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e terms of this rule, the review ought not to have been granted. The provisions of the rule are as follows: 1. (1) Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed; or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason,, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 36. In considering this question, it is necessary to remember the ground on which the review was granted. 37. A passage in the Subordinate Judge's judgment states the ground shortly and clearly; it is as follows: But it so happened that Chhuni died just on the day when I delivered judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary or desirable for their Lordships to express any opinion upon the questions raised in the judgment of the High Court which form ' the basis of the grounds of appeal Nos. 1 to 4 in the appeal to His Majesty in Council. 45. This appeal, therefore, must be allowed on the ground that the Subordinate Judge had no jurisdiction to grant the review. The result is that the Subordinate Judge's judgment of November 30, 1925, by which he granted the application for review and made a decree in the plaintiff respondents' favour, must be set aside except in so far as it relates to the costs of the defendant No. 1, and the judgment and decree of the High Court dated April 30, 1930, which affirmed that judgment and decree of the Subordinate Judge must also be set aside. The original judgment of the Subordinate Judge dated December 22, 1924, must be restored. 46. By reason of the fact that the ground on which the appeal to His Majesty in Council is allowed apparently was not relied upon in the High Court, their Lordships are of opinion that there should be no order as to the costs in the High Court and of this appeal. 47. Their Lordships will humbly advise His Majesty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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