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Report No. 54

Chapter 47

Review

Introductory

47.1. Order 47 provides for review of judgments. Review is limited to specific grounds, and the scope is much limited compared with the scope of review under some other systems.

47.2. For example, Order 41 of the Third Schedule to the Court Ordinance of the Gold Coast provides as follows1-

"1. Any judge, magistrate, or other judicial officer, may, upon such grounds as he shall consider sufficient, review any judgement or decision given by him (except where either party shall have obtained leave to appeal, or a reference shall have been made upon a special case, and such appeal or reference is not withdrawn), and upon such review it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary, or confirm his previous judgment or decision, or to order a non-suit.

2. Any application for review of judgment must be made not later than fourteen days after such judgment. After the expiration of fourteen days an application for review shall not be admitted, except by special leave of the court, on such terms as seem just."

1. See Kofi Forfie v. Seifali, 1958 WLR 52 (54) (PC).

Order 47, rule 1

47.3. According to some High Courts1, the fact that the view of the law taken in a judgment has been altered by the subsequent decision of a superior court in another case, is not a ground for review of the judgment. According to the Kerala High Court, however, it is a ground for review2.

1. (a) Liagat Husain v. Mohamad Razi, AIR 1944 Oudh 198 (DB).

(b) Lachmi v. Ghisa, AIR 1960 Punj 43 (45), para. 4.

(c) Patel Naranbhai v. Patel Gopaidas, AIR 1972 Guj 229.

2. (a) Palkrose v. Sonkaran Nair, AIR 1969 Kar 186.

(b) Chandreshekaran Nayar v. P. Nair, 1969 KLT 687.

47.4. In the Kerala case1, Raman Nayar J. held that the fact that a subsequent binding authority took a different view of the law from what had been taken in the decision sought to be reviewed, was a good ground for review. For, it would be the "discovery of a new and important matter", and in any case, "an error apparent on the face of the record", within the meaning of Order 47, rule 1. In his opinion, this would be a case where, without any elaborate argument, one could point to an error regarding which there could reasonably be no two opinions entertained. That the phrase "error apparent on the face of the record" is not limited to errors of fact but extends to errors of law, was, in his view, a position well-settled2, and found statutory recognition in the Court Fees Act.3 He pointed out that the phrase

"Mistake apparent from the record' occurring in section 35 of the Indian Income-tax Act, 1922, is synonymous with the phrase, "mistake or error apparent on the fact of the record". It was also pointed out that the Supreme Court had held that a mistake of law which is glaring and obvious is a "mistake apparent from the record."

1. Palkrose v. Sankaran Nair, AIR 1969 Ker 186.

2. Penkatachalam 1.T.O. v. Bombay D. & M. Co. Ltd., AIR 1958 SC 875, referred to.

3. Section 15, Court Fees Act, 1870.

47.5. Further, it makes no difference whether the binding authority demonstrating the error was a decision rendered before, or one rendered after, the decision in which the error occurred, for a judicial decision only declares the law and does not make or change it. A binding judicial authority is analogous to a statute which changes the law with retrospective effect. Following the Supreme Court case1, it was held in the Kerala case that if a subsequent legislation rendering a decision erroneous is a good ground for review, there is no reason why a subsequent binding decision declaring to be erroneous should, not be a good ground.

1. Venkatachalam I.T.O. v. Bombay D. & M. Co., AIR 1968 SC 875.

47.6. In an Andhra case1, the facts were as follows:-

An order was passed by the Andhra Pradesh High Court under Article 226 of the Constitution on 1-2-1968, following a Supreme Court decision. The decision of the Supreme Court which was relied on had been reversed by the Supreme Court on 25-10-1967, but was not fully reported by 1-2-1968, and was not brought to the notice of the High Court. It was held, that there was an error apparent on the face of the record in the order dated 1-2-1968, justifying review of the order. An error of counsel was sufficient ground for review. The Andhra case is based on error of counsel as a ground of review. But the Kerala ruling to which we have referred above2 is a direct one.

1. I.T. Officer v. Srinivasa Rao, AIR 1969 Al' 441 (443), para. 7.

2. Para. 47.5, supra.

Recommendation

47.7. It is felt that the position should be settled on this point. If the law is altered by judicial pronouncement of a higher court1, the party affected should not, in our opinion, have a right to get the judgment reviewed.

1. As to the effect of subsequent legislation, see AIR 1963 All 541.

47.8. An amendment adopting the Kerala view will create a serious practical problem. It will keep alive the possibility of review indefinitely. Under the Limitation Act,1 the period of limitation for an application or review has been prescribed, but the delay can, "for sufficient cause", be condoned by the Court under that Act2. Where an application for review is made on the ground of a later binding authority, the party applying for review will usually be able to plead "sufficient cause" because it is only when the superior court has made a pronouncement that he will have a ground for review; and he can, therefore, argue with considerable force that there was "sufficient cause"'for his not making the application earlier.

1. Article 124, Limitation Act, 1963.

2. Section 5, Limitation Act, 1963.

Recommendation

47.9. We, therefore, recommend that the following Explanation should be added below Order 47, rule 1

"Explanation-The fact that the view taken on a question of law in the judgment of a Court has been reversed or modified by the subsequent decision of a superior court in another case is not a ground for review of the judgment."

Order 47, rule 7

47.10. There is one point concerning Order 47, rule 7, which was discussed in the earlier Report1 in these words:-

"Under Order 43, rule 1(w), an appeal lies from an order under Order 47, rule 4 granting an application for review, but the scope of such appeal is limited to the grounds specified in clauses (b) and (c) of Order 47, rule 7(2). It follows, that where a review is granted on the ground of a mistake or error apparent on the face of the record, or "for any other sufficient reasons", no appeal would lie against the order granting review. This is not a satisfactory position. There does not seem to be any valid reason why an appeal should lie when a review is granted on certain grounds, and not where it is granted on other grounds. We recommend, that the restriction at present imposed by Order 47, rule 7 on the right of appeal against an order granting review should be removed."

1. 27th Report, para. 71. Also see pp. 243-244 (Notes), and draft amendment.

47.10A. We agree with the view taken in the earlier Report, namely, that the restriction at present imposed by Order 47, rule 7, on the right of appeal against an order granting review should be removed.



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