The Bombay And Persia Steam … vs The S.S. “Zuari” on 26 April, 1887

Bombay High Court
The Bombay And Persia Steam … vs The S.S. “Zuari” on 26 April, 1887
Equivalent citations: (1888) ILR 12 Bom 171
Author: C Sargent
Bench: C Sargent, Farran


Charles Sargent, C.J.

1. This is an appeal from an order of Mr. Justice Bayley granting a review. A preliminary objection has been taken, that in the present case no appeal lies, from that order.

2. Section 623 of the Civil Procedure Code is the first section dealing with the subject of review, and it states the circumstances under which a review may be applied for. Then come Sections 624, 626, and 629, which are the material sections in dealing with the case now before us. The last of these sections provides that there shall be no appeal against an order refusing a review, but. that there may be an appeal against an order granting a review, where such order is “(a) in contravention of the provisions of Section 624, or (b) in contravention of the provisions of Section 626 or (c) after the expiration of the period of limitation prescribed therefor, and without sufficient cause.”

3. The question now before us is, whether the order of Bayley, J. allowing a review was “in contravention of the provisions of Section 626;” and to decide this we have to consider whether these words, which are used in Clause (b) of Section 629, mean that there may be an appeal on the ground that there was not “sufficient ground” for granting the review,-in other words, an appeal on the merits generally, or only on the ground that the Court has granted the review without first coming to a conclusion that there was “sufficient ground”, or without notice of the application for review having been given to the opposite party, or without strict proof of the allegation referred to in proviso (b).

4. We think that the latter is the true construction of this clause, and that there is no contravention of the provisions of Section 626, if the Court, to which the application has been made, was of opinion that the review should be granted, and if the rules laid down in the provisos have been observed.

5. In the present case we understand that the learned Judge, who made the order, was of opinion that there was sufficient ground for review, and he accordingly granted the application. It is not contended that there has been any violation of the rules contained in the provisos to Section 626, and we must, therefore, hold that there is no appeal from the order.

Farran, J.

6. I am of the same opinion. Section 629, Clause (b) gives the right to appeal against an order granting a review only where the provisions of Section 626 have been contravened. These provisions are four in number, viz., (first) that, if the Court be of opinion that the application for review should be granted, it shall grant the same; (second) that the Judge shall record his reasons for granting it; (third) that the party applying for review shall give previous notice of his application to the opposite party; and (fourth) that where the applicant for review alleges that the new matter or evidence, the discovery of which is the ground of his application, was not within his knowledge when the decree was passed, he shall give strict proof of that allegation. In the present case no one of these four provisions has been contravened, and there is, therefore, no appeal against the order granting the review.

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