P L D 1960 Dacca 665 (PLP)

AKBAR, J.‑This is an application in revision against an order of the Additional District Judge, Mymensingh, dismissing an application for review.

2. The facts necessary to be stated for the purpose of this case are as follows : There was a suit for partition which the opposite‑parties, Mamruj Bewa and Samarta Banu, instituted against several defendants. After a preliminary decree was passed in the suit, a Commissioner was appointed to make the necessary investigation and allotments. As no objection was filed against the Commissioner's report, the preliminary decree was made final on 11‑8‑

58. On 27‑8‑58, an application for review was filed by the defendants. The learned Subordinate Judge allowed the application on 11‑3‑59, set aside the final decree and ordered the Commissioner to make fresh allotments in accordance with the directions given by him.

3. The plaintiffs then preferred an appeal from the order granting the review. The learned Additional District Judge allowed the appeal and set aside the order of the Subordinate Judge passed on the review application.

4. In this revision application, the defendants are challenging the legality and propriety of the aforesaid order.

5. The learned Advocate for the petitioners has challenged the maintainability of the appeal against the order granting the review. This objection is based upon the wording of sub‑rule (1) of rule 7 of Order XLVII, which is as follows :‑ "47

7. Order of Rejection not Appealable. Objections to Order granting application :‑-- (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was‑-- (a) in contravention of the provisions of rule 2, (b) in contravention of the provisions of rule 4, or (c) after the expiration of the period of limitation prescribed therefore and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit." The learned Advocate has submitted that the appeal must be limited to the grounds set out in the above rule and, as the grounds for appeal did not come within the prescribed limits, the Additional District Judge acted beyond his jurisdiction in enter taining the appeal and in setting aside the order of the learned Subordinate Judge.

6. Mr. Nurul Amin, the learned Advocate for the opposite parties, was candid enough to say that the grounds of appeal did not came within sub‑rule (1) of rule 7 of Order XLVIL He has however contended that the review application was wrongly entertained by the Subordinate Judge and the Appellate Court was, therefore, justified in setting aside the order of the Subordinate Judge.

7. In support of his contention, he has relied on the decision in the case of Nitya Gopal Mitra v. Jarit Manjuri Dasi and another (30 C W N 584). In the above case, the review was really made for reconsideration of the evidence in the case and the learned Judge reversed the findings of fact of his predecessor. It was, therefore, held that under Order XLVII, rule 7, read with rules 1 and 4, it was open to the Appellate Court to examine the ground upon which the review was admitted, and, if the grounds for the review did not come within the words of rule 1, then the Appellate Court was competent to hold that the review was improperly admitted and should have been rejected.

8. The present case is distinguishable from the above case. Here admittedly the allotments were not made in accordance with the shares decided in the preliminary decree. Thus there was an error apparent on the face of the record and the learned Subordinate Judge had, therefore, jurisdiction to entertain the review petition. Hence the above case has no application here. As, admittedly, the order granting the application was not objected to on the grounds (a), (b) and (c) of Order XLVII, rule 7, the appeal against the order granting the review was not maintainable. The learned Additional District Judge, therefore, acted illegally and without jurisdiction in setting aside the order of the Subordinate Judge.

9. It is true that the order of the Subordinate Judge which set aside the final decree is not quite satisfactory. Still we think that the review was permissible upon grounds on which it was admitted and hence we do not interfere with his order. Mr. Nurul Amin has submitted that the Subordinate Judge has, in effect, tried to modify the preliminary decree. If that is so, the parties can file objection to the fresh report of the Commissioner before passing of the final decree and thus restore the decree or order which was ordered to be varied by the review. If the final decree is not in accordance with the preliminary decree, the parties will also be able to challenge the final decree in appeal.

10. For the above reasons, we allow the application, set aside the order complained of and restore the order of the Sub ordinate Judge.

11. The Rule is accordingly made absolute but without any order as to costs. ASIR, J.‑I agree‑ K. B. A. Rule made absolute.