JUDGMENT D. K. Seth, J.
1. The order dated April 29, 1999 passed in Civil Misc. Appeal No. 85 of 1997 passed by the Additional District Judge. Vth Court, Etawah, affirming the order dated October 15, 1997, passed by the Additional Civil Judge (Junior Division), 1st Court, Etawah in SCC Suit No. 4 of 1980 has since been challenged.
2. Mr. K. M. Misnra, learned counsel for the petitioner contends that by an order dated August 30, 1997, an application for substitution filed by Avinash Chandra Saxena in the place and stead of Prakash Chandra Saxena was dismissed. According to him, the order is revisable. But the opposite party had filed an application for review of the order dated August 30. 1997. The said review application was allowed by the learned trial court by the Impugned order dated October 15, 1997, since been affirmed on appeal by order dated April 29, 1999. According to him, the trial court could not have assumed Jurisdiction to review the said order after having rejected the application for substitution. Therefore, the said order is wholly without Jurisdiction. The appellate court had acted illegally and without material in the exercise of its Jurisdiction in affirming the said order on the face of the illegality inherent in it. According to him, since the order was revisable one, the review could not have been maintained on the said facts without disclosing any ground for review. He alternatively, contends that even if assuming but not admitting the review is maintainable still then, the orders suffer from Infirmity to the extent that no ground was ever made out. Therefore, the order should be set aside.
3. I have heard Mr. K. M. Mishra a,t length.
4. The order dated August 30. 1997, shows that Avinash Chandra had filed the application for substitution as Manager of the Joint Hindu family in place and stead of Prakash Chandra Saxena on account of his death on April 24. 1994. on the ground that Avinash Chandra Saxena was the brother of Prakash Chandra Saxena. Admittedly, he was not a heir of the deceased. It seems that the deceased has left his wife. In the said order, it was mentioned that the members of the Joint Hindu family along with Smt. Ombati, wife of Prakash Chandra Saxena had decided to appoint Avinash Chandra Saxena as its Manager and on the basis thereof, the application for substitution was filed. But Avinash Chandra Saxena being the brother of Prakash Chandra Saxena cannot be a heir of the deceased in law. Therefore, the said application was dismissed by order dated August 30, 1997.
5. In the order dated October 15. 1997, it was found that the suit was filed by Prakash Chandra Saxena as karta of the joint Hindu family. Smt Ombatl was the wife of Prakash Chandra Saxena. But the application was filed on behalf of Avinash Chandra Saxena as Manager of joint Hindu family after having been appointed as karta thereof. Therefore, even though Avinash Chandra was not heir of the deceased Prakash Chandra Saxena, in law in his Individual capacity, but still then the suit having been filed on behalf (of the Joint Hindu family as karta, on the death of the karta, the person who became karta of the Joint Hindu family is eligible for being appointed and for being substituted in the place and stead of the deceased karta. Thus, it comes to a finding that there was an error apparent on the face of the record and, therefore, the application was allowed. The appellate court had affirmed the said order on Identical grounds.
6. If a suit is filed by Prakash Chandra Saxena as karta of the joint Hindu family, on the death of such karta the substitution can be applied for only by the karta who takes over the joint Hindu family. The suit was not in the individual capacity, therefore, his heirs as an individual cannot be substituted. The order dated August 30, 1997, was passed apparently on a mistaken belief though on the face of the record, the suit was filed by the karta of the Joint Hindu family and the substitution was claimed by the subsequent karta of the Joint Hindu family. Admittedly, this is an error apparent on the face of the record which is one of the grounds on which review Is permissible.
7. Section 114 of the Code of Civil Procedure providing for review, provides that a person may seek a review of a decree or order against which appeal is allowed but no appeal is preferred and a decree or order from which no appeal is allowed, as well as from a decision on a reference from a Court of Small Causes if the Court thinks fit. Order 47 of the Code on identical terms provides that review is permissible against a decree or order from which an appeal is allowed but no appeal is preferred or against a decree or order from which no appeal is allowed, or against a decision on a reference from, a Court of Small Causes. Therefore, review can be preferred even against any order from which either an appeal is permissible or from an order where appeal is not allowed, as the case may be. The grounds for review that have been provided in Order 47 include mistake or error apparent on the face of the record as well as for any other sufficient reason. Therefore, the grounds taken by Mr. Mishra cannot be sustained since a review can be permitted even if, there is a remedy by way of appeal or even where there is no appeal. In case, it is interpreted that the revision is permissible where no appeal is allowed, in that event, revision is permitted only when the appeal is not allowed. The existence of remedy in revision also can be included within the clause where no appeal is allowed. Thus, the existence of remedy by way of revision cannot stand in the way of entertaining the application for review provided sufficient ground is made out for reviewing such order.
8. In the facts and circumstances of the case, on merit it appears that there were errors apparent on the face of the record as discussed above on which the review could be taken on merit also. For all these reasons, I am not Inclined to interfere with the impugned orders.
9. The application under Article 227 of the Constitution of India, therefore, fails and is, accordingly, dismissed. However, there will be no order as to costs.