JUDGMENT Wali Ullah, J.
1. This is an appeal under Order 43, Rule 1(w) against an order granting an application for review, In order to appreciate the points raised in this appeal, it is necessary to set out the relevant facts.
2. It appears that Mt. Rajeshwari. Kunwar obtained a decree for arrears of rent against the appellant Ram Baksh for Rs. 319/12/- on 7th June 1931. This decree became final. In execution of the decree, ejectment of Ram Baksh appears to have been ordered on 23rd August 1932, but actual possession was given to the decree-holder by the Amin on 26th November 1932, on which date Ram Baksh also deposited the decretal amount with the Amin. Against the order of ejectment, Ram Baksh went in appeal to the Commissioner who, however, held that the appeal lay to the civil Court and on Slat March 1933, ordered the return of the memorandum of appeal for presentation to the proper Court. Thereupon the appeal was filed in the Court of the District Judge who dismissed it on 23rd July 1935, on the ground that it was barred by time. The learned District Judge while dismissing the appeal went on to pass a curious order to the effect that the decretal amount deposited by Ram Bux on 26th November 1932, should be refunded to him. Against the order directing the refund of the decretal amount there was an appeal by Mt. Rajeshwari Kunwar to the High Court. It was dismissed on 7fch April 1937, on the ground that no appeal lay. Thereafter on 22nd May 1937, a civil suit was filed by Mt. Rajeshwari Kunwar for a declaration that the order of the District Judge directing a refund of the decretal amount deposited was illegal and without jurisdiction. This suit was dismissed, but ultimately it came up to this Court and at the stage of a Letters Patent appeal this Court while holding that declaration of the type 'Sought could be given, went on to observe that the order of the District Judge directing a refund of the amount in question was manifestly wrong and the proper remedy against it was to apply for a review of the order. The Letters Patent appeal was decided on 12th April 1943. Apparently, in view of the observations made by this Court, an application for a review of the order of the District Judge dated 23rd July 1935, was made on 30th September 1943. It was, however, made not to the Judge who passed the order sought to be reviewed but to his successor in office. This application was supported by an affidavit in which all the relevant facts were set out. Article 173 of the Limitation Act prescribes a period of 90 days from the date of the order for an application for a review of a judgment. This application for review was obviously very much delayed. Paragraphs 22, 23 and 24 of the affidavit aforementioned, therefore, sought to explain the circumstances in which all this delay had taken place. Notice was issued to the opposite party but no counter affidavit appears to have been filed. The learned District Judge, on a consideration of the circumstances of the case and more particularly in view of the detailed statements contained in the affidavit accompanying the application for review, felt satisfied that the applicant before him had bona fide taken all such steps as her legal advisers had told her to take and that she had acted throughout diligently. In view of these considerations, the delay in the presentation of the application was condoned by him. On the merits, in view of the observations of this Court in the Letters Patent appeal, the learned Judge held that the order relating to the refund of Rs. 849/12/- was manifestly wrong. He accordingly directed that the portion of the judgment of the learned District Judge dated 23rd July 1935, relating to the refund of this amount be deleted and the decree passed by him be also amended in accordance therewith. Against the order of the learned Judge Ram Baksh has come up in appeal to this Court.
3. We have heard learned Counsel for the appellant at great length. He has strongly contended, in the first instance, that the application for review was filed long after the expiration of the period of limitation and was without sufficient cause. His contention is that in the circumstances of this case the respondent-the applicant for review-was not entitled to the benefit of Section 5 and 14 of the Limitation Act and that the learned Judge of the Court below was entirely in error in condoning the delay. In this connection, learned Counsel has invited our attention to the case in Secy. of State v. Hindustan Co-operative Society Ltd. ('32) 19 A.I.R. 1932 Cal. 171 where, according to the contention of the learned Counsel, the facts were similar and the Calcutta High Court declined to allow condonation of delay in making an application for review. Obviously, whether sufficient cause has been made out for condoning the delay in making an application for review must necessarily depend upon the facts and circumstances of each individual case. The circumstances in which the delay in the presentation of the application for review took place are clear from a mere recital of the events as they happened in this case. Moreover, the affidavit filed in support of the application particularly paras. 22, 23 and 24, clearly explains the circumstances in which this delay took place. It seems to me clear that the applicant for review in this case acted throughout diligently and bona fide took all steps which she was advised to take by her legal advisers. In this view of the matter, the learned Judge acted very rightly in condoning the delay and entertaining the application for review.
4. Learned Counsel has, in the second place, contended that the order sought to be reviewed having been affirmed in appeal by this Court, the application for review was incompetent and the learned Judge had no jurisdiction to entertain it. The proposition of law on which this argument is based is undoubtedly sound and well established by the case law. The question, however, remains whether this proposition has any application to the facts of the present ease. As mentioned already, in this case an appeal was no doubt filed in the High Court against the order of the District Judge dated 23-7-1935, but it was dismissed on the ground that it was incompetent as there was no provision in law for any such appeal. Apparently learned Counsel in advancing this argument had in mind the persons of Order 47, Rule 1(a), Civil P. C, which provides for a case where an appeal is provided by law. He has referred to the case in Sheo Balak Singh v. Mahabir Singh 18 A.I.R. 1931 All. 704, decided by two learned Judges of this Court. In that case a second appeal was filed in the High Court while an application for review was pending in the lower appellate Court. The appeal in the High Court was dismissed under Order 41, Rule 11, Civil P.C., before the application for review in the lower appellate Court had been disposed of. Thereafter, when the application for review was taken up, the lower appellate Court held that after the affirmance of its decree on appeal by the High Court it had no jurisdiction to entertain the application. This view was affirmed by the High Court. This case is clearly, distinguishable inasmuch as the second appeal to the High Court was fully competent. Again reference has been made to the cases in Shivappa v. Ramchand Narshingh 9 A.I.R. 1922 Bom. 130, Ratan Chand Khemchad v. damji Dharsey ('27) 14 A.I.R. 1927 Bom. 232 and Balling Vithaling v. Shri Devasthan Fund Gondhale ('31) 18 A.I.R. 1931 Bom. 232. Similarly, reference has been made to the case in Jugeshar Misir v. Kirit Singh ('42) 29 A.I.R. 1942 Pat. 76 and the case in Dhuplal Singh v. Ramdhani Dusadh ('43) 30 A.I.R. 1943 Pat. 353. Lastly our attention has been invited to the case in Gauri Shankar v. Jagat Narain ('34) 21 A.I.R. 1934 All. 134 and the case in Ganeshi Lal Krishna Lal v. Moolchand Nemichand ('35) 22 A.I.R. 1935 All. 35. I have examined all these cases with care. It is clear that these are all cases where the general proposition was affirmed, namely, when once a decree or order is affirmed on appeal by a superior Court, it is not open to the lower Court which passed the decree to entertain an application for review. The test undoubtedly is whether the decree passed by the superior Court, viz., the appellate or the revisional Court, is such that the decree passed by the lower Court has been merged in it. Once the decree of the Court of first instance merges in the decree passed by the appellate Court, it ceases to exist and the Court of first instance cannot, therefore, alter or amend it. In the present case no such thing has happened. It was clearly held by the High Court that the appeal was incompetent and the case, therefore, fell within the purview of Order 47, Rule 1(i)(b), Civil P.C., which provides for a case where the decree or order is not open to appeal. It follows that there is no substance in this contention.
5. Lastly it has been contended that the ground for review urged before the Court below was that there was an error apparent on the face of the decree. It must be remembered that the application for review was moved not before the Judge who had passed the original decree but before his successor. It follows, therefore, that this ground for review must relate to 'an error apparent on the face of the decree as provided in Rule 2 of Order 47, Civil P.C. learned Counsel for the appellant has faintly contended that there was no error apparent on the face of the decree, but his main contention, however, has been that the error in this case, if any, was one of law and such an error is not an error contemplated by either Rule 1 or Rule 2 of Order 47, Civil P.C. The crucial question, therefore, is whether an error in law apparent upon the face of the decree can be a good ground for basing an application for review. Learned Counsel has in this connection invited our attention to the case in Bala Prasad v. Bal Krishan ('33) 1933 A.L.J. 75, where, according to the learned Counsel, this proposition of law was maintained or upheld. In this connection learned Counsel has also referred to the case in Chhajju Ram v. Neki 9 A.I.R. 1922 P.C. 112 and the case in Kishun Chand v. Makund Swarup 25 A.I.R. 1938 All. 308. On a close examination of the facts of these cases and the principles of law applied therein, it would appear that no such proposition of law as is contended for by the learned Counsel was laid down or affirmed in any of these cases.
6. In Bala Prasad v. Bal Krishan ('33) 1933 A.L.J. 75 a Bench of two learned Judges of this Court was dealing with an application for review in which it was urged that there was an error apparent upon the face of the record within the meaning of Rule 1 of p. 47 inasmuch as a certain point of law had been overlooked by the Bench which disposed of the appeal. With reference to this contention the learned Judges observed:
The point of law which the learned Counsel for the applicant desires to establish is a point which he could only establish after argument and reference to authorities. It is certainly not a point which is apparent on the face of the record; nor is it a point so simple as to carry conviction when it is stated.
And the application for review was dismissed. The learned Judges no doubt referred to certain observations made by their Lordships of the Privy Council in Chhajju Ram v. Neki 9 A.I.R. 1922 P.C. 112, but all those observations merely confirmed the view taken by the learned Judges of the Bench of the High Court, viz., that the error of law which can come within the expression "an error apparent upon the face of the record" must be patent and not one which could be established only after argument and reference to authorities. Their Lordships of the Privy Council in Chhajju Ram v. Neki 9 A.I.R. 1922 P.C. 112, were dealing with the case of a review where the ground alleged was not the discovery of some new material overlooked by excusable misfortune or a mistake or error apparent upon the face of the record, but one which was sought to be based upon the expression "any other sufficient reason" and it wag held that "any other sufficient reason" meant a reason sufficient on grounds at least analogous to those specified immediately previously. Again in Kishun Chand v. Makund Swarup 25 A.I.R. 1938 All. 308, a learned single Judge of this Court affirmed the principle that an erroneous view of the law on a debatable point cannot be considered a mistake or error apparent on the face of the record and in taking this view he found himself in agreement with the view held in Bala Prasad v. Bal Krishan ('33) 1933 A.L.J. 75, that an application for a review of judgment cannot lie merely on the ground that there is an error of law which is not apparent or patent on the face of the record. There is nothing in this decision which in any way supports the broad proposition for which the learned Counsel contended before us Chhajju Ram v. Neki 9 A.I.R. 1922 P.C. 112, as indicated already, their Lordships of the Privy Council were concerned principally with the question of proper interpretation of the expression "any other sufficient reason" in Rule 1 of Order 47, Civil P.C. After examining the position at length their Lordships arrived at the conclusion which they have expressed thus:
They think that Rule 1 of Order 47 must be read as in itself definitive of the limits within which review is to-day permitted, and the reference to practice under former and different statutes is misleading. So construing it, they interpret the words "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously.
Nowhere have their Lordships enunciated any general principle to the effect that an error of law can in no circumstances be an error apparent upon the face of the record. It follows, therefore, that none of the three cases cited by the learned Counsel lends any support to the contention advanced by him.
7. On the contrary, we have the decision of a learned single Judge of this Court in Kamta Chaudhary v. Lal Chandra Mool Pratap 32 A.I.R. 1945 All. 284, where the learned Judges observed:
I quite agree that a Court cannot admit an application for review merely upon the upon that it has made a mistake in law, but I think if the mistake is an obvious one due to failure to notice particular section of an Act, or part of such a section, it would be to much to say that the obvious error could not be corrected by the Court.
8. I am in full agreement with the observation made by the learned Judge in the above, mentioned case.
9. The expression "mistake or error apparent upon the face of the record" in Rule 1 of Order 47, Civil P.C., is, in my judgment, not limited to mere errors of fact. It may also include errors of law. The law must be definite 'and the error in regard to it must be apparent i.e. patent upon the face of the record. It follows, therefore, that even an erroneous view of the law on a debatable point or a wrong exposition of the law, when it (the law) is not definite or clearly ascertained, would be no mistake or error apparent upon the face of the record in an application for review. An error cannot be characterized as apparent i.e., patent upon the face of the record if, e.g., it is one which would be apparent only to a person who has made the necessary research into the case law. It is an error which can be seen at once by a mere perusal of the record without reference to any other matter and without the aid of any argument or reference to authorities in order to carry conviction. Thus a failure to consider a precedent bearing upon the case is not a mistake or error apparent upon the face of the record but is really the discovery of a new and important matter by the party who ought to have brought the precedent in question to the notice of the Court and as such it may afford a ground for review of the judgment and decree if it can be shown that the failure to bring it to the notice of the Court was excusable.
10. In the present case there is no question that the learned District Judge who passed the order in question on 23rd of July 1935, on dismissing the appeal as time barred, had no-jurisdiction to pass any order in regard to the refund of the amount deposited by Ram Baksh. Furthermore, a reference to Section 79, Agra Tenancy Act, 1926, would have clearly shown that a tenant on ejectment is not exonerated from his-liability for the decree for arrears of rent. As observed by the Letters Patent Bench of the High Courts, the order for refund passed by the learned Judge was manifestly wrong and no argument was needed to convince the Court that it was a wrong order. The error committed by the learned Judge was, therefore, clearly of the kind contemplated by the expression "an error apparent upon the face of the decree" in Rule 2 of Order 47, Civil P.C. It was accordingly a good ground for the amendment effected in the decree by the successor to the learned Judge.
11. There is no force in the appeal. I would dismiss it with costs.
Bind Basni Prasad, J
12. (After stating the facts the learned Judge continued.) The first point urged on behalf of the appellant is that the review application was not competent, as the respondent having elected the course of appeal against the decree dated 23rd July, 1935, it was not open to her to apply for review after her failure in appeal. Sheo Balak Singh v. Mahabir Singh 18 A.I.R. 1931 All. 704, Shivappa v. Ramchand Narshingh 9 A.I.R. 1922 Bom. 130, Balling Vithaling v. Shri Devasthan Fund Gondhale ('31) 18 A.I.R. 1931 Bom. 232, Ratan Chand Khemchad v. damji Dharsey ('27) 14 A.I.R. 1927 Bom. 232 were relied upon. As will be presently shown, none of these authorities are applicable to the present case. Before dealing with them, I may examine the terms of Rule 1 of Order 47. According to that rule an application for review is maintainable by 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.
13. It was held by this Court in the appeal which the respondent preferred against the, order dated 23-7-1935, that no appeal lay to this Court. Hence, the case does not fall under Clause (a) of Rule (1). It falls under Clause (b) of that rule. The question of an election between a review and an appeal arises only when both the courses are open to a party. It cannot arise when the course of an appeal is not open to him. In the present case the only course open to the respondent for obtaining a modification of the District Judge's decree dated 23-7-195, was by way of review. Under a wrong advice, however, she came in appeal to this Court and brought a regular suit thereafter. I deal now with the cases cited above.
14. In Sheo Balak Singh v. Mahabir Singh 18 A.I.R. 1931 All. 704 and in A. I. B. 1922 Shivappa v. Ramchand Narshingh 9 A.I.R. 1922 Bom. 130 the appeals did lie to the High Court and they were dismissed under Order 41. Rule 11. It was held that once a decree is affirmed by the High Court it merges into the decree o£ the High Court and it is no longer open to the lower appellate Court to vary that decree. These two cases are clearly distinguishable from the present one. The appeal in this case was thrown out because it was held that no appeal lay to this Court. It cannot be said that the decree dated 23-7-1935 passed by the District Judge was affirmed by this Court or merged into the decree of this Court. In Ratan Chand Khemchad v. damji Dharsey ('27) 14 A.I.R. 1927 Bom. 232 it was held that in the exercise of the inherent powers it is not open to the High Court to disregard the express provisions of the Code and entertain an application for review of a judgment against which an appeal was preferred to His Majesty in Council but was dismissed for want of prosecution.
15. In Balling Vithaling v. Shri Devasthan Fund Gondhale ('31) 18 A.I.R. 1931 Bom. 232 it was held that an application for review is not competent if on the date when 'the review application is filed the appeal from the decree sought to be reviewed is pending, nor can subsequent withdrawal of the appeal before an application for review comes on for hearing amount to non-preferring of the appeal within the meaning of Order 47, Rule (1). In this case also, an appeal to the High Court was competent and it fell under Clause (a) of Rule (1) of Order 47 and not under Clause (b) thereof.
16. The second point taken on behalf of the appellant was that the alleged error of the District Judge in his order dated 23-7-1935, was an error of law and is not one which comes. within the purview of Rule (1) of Order 47. Reliance is placed upon Chajju Ram v. Neki 9 A.I.R. 1922 P.C. 112, Bala Prasad v. Bal Krishan ('33) 1933 A.L.J. 75, Kishun Chand v. Makund Swarup 25 A.I.R. 1938 All. 308. As will be shown presently, none of these cases lays down the broad proposition that under no circumstance can an error o£ law be treated as an "error apparent on the face of the record." On the other hand, we have the case in Kamta Chaudhary v. Lal Chandra Mool Pratap 32 A.I.R. 1945 All. 284 at p. 225 in which a learned Judge of this Court observed as follows:
I can agree that a Court cannot admit an application for review merely upon the ground that it has made a mistake in law, but I think if the mistake 13 an obvious one due to failure to notice a particular section of an Act or a part of such a section it will be too much to say that the error could not be corrected by the Court.
17. In Chajju Ram v. Neki 9 A.I.R. 1922 P.C. 112 their Lordships of the Privy Council pointed out the scope of Rule (1) of Order 47 and observed that alleged incorrect exposition of the law which was sought to be corrected by review in that case was not one which was an "error apparent on the face of the record." They did not enunciate the principle that an error of law can in no circumstance be an "error apparent on the face of the record." This Privy Council ruling was discussed by a Division Bench of this Court in Bala Prasad v. Bal Krishan ('33) 1933 A.L.J. 75. Their Lordships observed that the point of law which the learned Counsel for the applicant desired to establish was a point which he could only establish after argument and a reference to authority. It was with reference to this circumstance that it was' observed by them that the Privy Council had negatived the proposition that an error Of law comes under, the words "error apparent on the face of the record." In the context in which this remark appears it cannot be taken as laying down a general proposition that an error of law can under no circumstance be treated as an "error apparent on the face of the record."
18. In Kishun Chand v. Makund Swarup 25 A.I.R. 1938 All. 308, Bala Prasad v. Bal Krishan ('33) 1933 A.L.J. 75 was followed and a learned single Judge of this Court held that an erroneous view of the law on a debatable point or wrong exposition of the law or a wrong application of the law cannot be considered a mistake or an "error apparent on the face of the record." Viewed in the context of the facts of that case it cannot be regarded as an authority for the proposition that in no circumstance an error of law is an "error apparent on the face of the record." I agree with the proposition laid down by the learned single Judge in Kamta Chaudhary v. Lal Chandra Mool Pratap 32 A.I.R. 1945 All. 284 which has been quoted above.
19. There is nothing in the phrase "error apparent on the face of the record" to confine it only to errors of facts and not of law. Such an error may be one of fact or of law. It should not be a debatable one. It has only to be stated and discovered. A mere reference to a section of the Act should convince the Court of the error it has committed. Now, in the present case, there can be no room for doubt that the learned District Judge in his order dated 23rd July 1935 committed such an error. Had his attention been drawn to Section 79, Agra Tenancy Act, he would have at once discovered that the tenant was not exonerated of his liability for the decree for arrears of rent on his ejectment from the holding. Ejectment of a tenant is, according to that section, a mode of execution in addition to any other mode of execution. Moreover, the appeal before him was from the order of ejectment and when he dismissed it as time barred it was not open to him to pass any order in regard to the decretal amount deposited by the present appellant. This point was not at all debatable and has not been debated before us. It had only to be stated, Section 79 had to be referred and the matter was clear. I am of opinion that the mistake in the present case was an "error apparent on the face of the record."
20. The third pomp argued was that as the alleged error was not an error on the' face of the record, it fell, if at all, under the phrase "other sufficient reasons" which occurs in Section (1) of Order 47 and that being so, an application for review
21. The fourth point argued was that the application for review was time barred. No doubt there was an interval of about eight years between the judgment sought to be reviewed and the application for review, but from the history of the litigation as given at the commencement of the judgment it will be seen that the respondent has been diligently and bona fide prosecuting the matter. She is a purdanashin lady. She first came to the High Court against the decree dated 23rd July 1933. Having failed in it, she brought a regular suit and fought it to the Letters Patent appeal. Then, about six weeks after the dismissal of her Letters Patent appeal, she made an application for review. It takes time to a litigant in the mufassil to receive a copy of the judgment of the High Court. She must have then consulted lawyers and then she made an application for; review which was supported by an affidavit. In para. 23 of the affidavit her pairokar asserted that the respondent was bona fide prosecuting the case and was not guilty of any negligence in making the present application.
It cannot be said that she engaged junior lawyers. From the record it will be seen that before Mr. Harish Chandra Mr. Murli Manohar, a senior lawyer of Moradabad Bar, appeared for her and in this Court Mr. Shambhu Nath Seth appeared for her. I am satisfied that the respondent took such steps as her legal advisers advised her to take and she acted diligently and the delay in filing the review application was rightly condoned by the learned District Judge.
22. Learned Counsel for the appellant has relied upon Secy. of State v. Hindustan Co-operative Insurance Society ('32) 19 A.I.R. 1932 Cal. 171. The period of limitation for an application for review is 90 days. From 23rd July 1935 to 7th April 1937 time was taken in appeal to this Court. Within six weeks of the decision of this Court the respondent brought a regular suit in the civil Court, and that litigation concluded on 12th August 1943 when the Letters Patent appeal was dismissed. Within six weeks' of this decision an application for review was made. It will be thus seen that the time taken by the respondent in her apparent inactivity was not more than 90 days. During the rest of the period in this interval of about eight years she has been diligently taking steps for the expunction of the impugned paragraph from the learned District Judge's judgment dated 23rd July 1935. The facts in Secy. of State v. Hindustan Co-operative Insurance Society ('32) 19 A.I.R. 1932 Cal. 171 are distinguishable. It was observed in that case that where a party knows that his right of appeal is contested by the opposite party and it has not filed an application for review before his appeal is lodged, but does so subsequent to the dismissal of the appeal and cannot show Sufficient cause why an application was not filed in time before the appeal, his application is out of time and cannot come under Section 5 and he is not entitled to claim exclusion of the period during which the appeal was pending under Section 14, Limitation Act. That is not the position in this case.
23. Lastly, it was alleged that the order relating to interest is unjust. I do not find anything in Mr. Chandramani's order dated 12th April 1944 directing the appellant to pay any interest to the respondent. All that he has done is to delete the paragraph quoted above from Mr. Harish Chandra's judgment dated 23rd July 1935.
24. For the reasons given above, I see no force in this appeal and would dismiss it with costs.
25. The result is that the appeal is dismissed with costs.