Report No. 27
Order XLIII, rule 1(w)
1. Order XLIII, rule 1 (w) allows an appeal against an order granting an application for review. But Order XLVII, rule 7(1), last sentence, lays down the grounds on which the order can be objected to in appeal. Obviously, Order XLIII, rule 1 must be so read as to harmonise with Order XLVII, rule 7. The position is not clear at present1.
2. It may be noted that the High Courts of Calcutta, Patna, Rangoon and Lahore and the Chief Court of Oudh have taken the same view, so that an appeal lies only on the grounds mentioned in that rule2.
3. The Bombay High Court held in one case3, that an appeal is open against the order granting the review quite irrespective of the limitation contained in rule 7. After this decision, the Bombay High Court has deleted clause (w) from rule, so that there is no appeal now4, except on the ground mentioned in Order XLVII, rule 7.
4. This is also the view of the Allahabad High Court5.
This was the earlier Madras view also, but some doubt has been thrown by observations in a later case6.
As Order XLVII, rule 7(1) is proposed to be modified so as to allow appeal without restriction as to grounds7, this controversy will not survive now.
1. For a review of case-law on this point, see M. Agaih v. M. Abdul Kareem, AIR 1961 AP 201 (FB).
2. Sarajubala Guha v. Aswini Kumar, ILR (1946) 2 Cal 527: AIR 1946 Cal 530(FB); Sundar Mal v. Upendra Nath, (1915) 1 Pat LJ 193: 35 IC 15; A.T.K., P.L.M. Mathu v. Lashminarayan, 1928 ILR 6 Rang 254; Sikandar v. Baland, 1927 ILR 8 Lah 617: AIR 1927 Lah 435 (2) (Tek Chand J.); Bankey Behari v. Abdul Rahman, 1932 ILR 7 Luck 350.
3. Daso v. kirbasappa, AIR 1926 Born 121.
4. Kunversi v. Pitamberdas, AIR 1927 Born 599; Shidramappa v. Gurushantappa, AIR 1929 Born 183; Narayan v. Rango, AIR 1933 Born 183.
5. Ali Akbar v. Khurshed Ali, (1905) ILR 27 All 695; Munnu v. Kunja Behari, 1922 ILR 44 All 605: AIR 1922 All 206.
6. Ananthalakshmi v. Hindustan, etc., Trust Ltd., AIR 1951 Mad 927.
7. See Order 47, rule 7 as proposed.