DEKA, J.: This rule was obtained by the decree-holder against an order of the learned Subordinate Judge, Dhubri, dated 4-4-1959 whereby he set aside the order of the learned Munsiff dated 5-4-1958. (2) The facts shortly put are that while the petitioner sought to execute a decree in Title Execution Case No. 14 of 1949, the judgment-debtor raised an objection that the decree-holder No. 1 had already sold away his interest in the suit land to two-persons, namely, Rahimuddin and Mahimuddin, and divested himself of any interest in the land, and, therefore, he was estopped from executing the decree since he had no right in the suit property left at the moment. The learned Munsiff by his order dated 10-2-1958 accepted this contention raised by the judgment-debtors and held that the decree-holder No. 1 had no more got any right to execute the decree by taking khas possession of the land, and, accordingly the objection was allowed. But, a review petition was made by the decree-holder against this order wherein it was pointed out that this identical point had been raised by the judgment-debtor at a previous stage of the execution proceedings and that objection had been decided against the judgment-debtor by the executing court; as well as by the appellate court, and, therefore, this point could not have been reagitated by the judgment-debtor; nor should it have been allowed by the learned Munsiff by his order dated 10-2-1958. Notice of this review petition was given on the judgment-debtor and the final order was passed by the learned Munsiff on 5-4-1958 whereby the review petition was allowed and the order of 10-2-1958 was set aside. In this order dated 5-4-1958, the learned Munsiff says: "It appears that the self-same objection was taken by the J. D. on 9-8-1952 and the objection was rejected by one of my predecessors by his order dated 12-11-52. The J. D. preferred an appeal against the order dated T2-11-52, but the appellate court by its order dated 23-2-53 dismissed the appeal and thereby rejecting the objection raised by the J. D. The learned pleader for the D. Ar. 1 referred me on 31-1-58 to the order dated 12-11-52 passed by this Court.
The J. D. preferred an appeal against the order dated T2-11-52, but the appellate court by its order dated 23-2-53 dismissed the appeal and thereby rejecting the objection raised by the J. D. The learned pleader for the D. Ar. 1 referred me on 31-1-58 to the order dated 12-11-52 passed by this Court. But through inadvertence, while writing the order on 10-2-58, neither this order dated 12-11-52 nor the order dated 23-3-53 of the appellate court drew my attention, in consequence of which the objection of the J. D. was upheld". In this view, he vacated the earlier order and allowed the review petition. Against this order, an appeal was preferred in the court of the Subordinate Judge, who, by his order dated 4-4-1959 disposed of the appeal, whereby he vacated the order passed in review and further directed that the judgment-debtor wag entitled to raise the question of maintainability of the application by the decree-holder No. 1 alone after parting with his interest by transfer to a third party, and, as such, that question was allowed to be determined on merits. He directed further the trial court to proceed to take evidence on this point. (3) Objection has been taken as to want of jurisdiction of the appellate court mainly on two grounds - firstly, that under Order 47 Rule 7 Civil Procedure Code, the appellate court could not have interfered with the order passed in review in the circumstances of the case and secondly that in any event the court could not have interfered with an order •which was not the subject-matter of the review it-* self. In our opinion, the second point raised is quite patent,-the appeal being confined to the order passed in review of the learned Subordinate Judge had no jurisdiction to interfere with an earlier order which was not the subject matter of the appeal. (4) In regard to the first contention, though I must confess that at first I was not very much im-pressed, I find that there is sufficient ground for interference even on that ground. Order 47 Rule 7 Civil Procedure Code does not give to the appellate court the full and plenary power, of interference as; is generally ascribed to a court of appeal.
Order 47 Rule 7 Civil Procedure Code does not give to the appellate court the full and plenary power, of interference as; is generally ascribed to a court of appeal. The jurisdiction of the appellate court in this matter is to; some extent limited and for the purpose 1 propose to quote below the relevant portions of Order 47 Rule^ 7 and 4 of the Code of Civil Procedure. "7. (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 -• * * * * * * (b) in contravention of the provisions of rule 4,.,...... 4. (2) Where the Court is of opinion .that the application for review should be granted, it shall grant tile same: Provided that - * * * * * * (b) no such application shall be granted on the discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made', without strict proof of such allegation". Therefore, in our opinion, the right of appeal is confined only to the violation of what is stated in Rule j 4, namely whether the reviewing court had allowed review petition on the ground of discovery of evidence or fresh materials which was not within the knowledge of the applicant, without strict proof of such allegation. This, in other words, would mean that where the review petition is not allowed on I this ground, namely, on the discovery of evidence j or other materials which was not within the knowledge of the applicant, the appellate court should not interfere; because, Rule 4 does not speak of "errors or mistakes apparent on the face of the record or for any other sufficient reason'' as is stated in Order 47 Rule 1 of the Code of Civil Procedure. This would incline us to hold that where a review application is allowed on the ground that in the opinion of the Court allowing review the earlier order was bad because of some mistake or error apparent on the face of the record, the appellate court; hag no jurisdiction to interfere.
This would incline us to hold that where a review application is allowed on the ground that in the opinion of the Court allowing review the earlier order was bad because of some mistake or error apparent on the face of the record, the appellate court; hag no jurisdiction to interfere. In this matter, it| is clear that what was represented was that there was an earlier order by which the judgment-debtor was debarred from raising a plea in bar which had been raised earlier and rejected both by the executing court as well as by the appellate court. The learned Subordinate Judge in appeal had no jurisdiction, therefore, to ascertain for himself as to whether the learned Munsiff was right in holding that the earlier order was bad for apparent error or mistake on the face of the record, which the latter found to be substantiated. In our view, therefore, the learned Subordinate Judge exceeded his jurisdiction in interfering, with the order of the reviewing court dated 5-4-1958, and, this amounted to his going beyond his jurisdiction vested in him by law in exercising his powers under Order 47 Rule 7 of the Code of Civil Procedure. (5) We accordingly order that the order of the learned Subordinate Judge dated 5-4-1959 be set aside and that of the learned Munsiff dated 5-4-1958 be restored. The rule is made absolute with costs, hearing fee Rs. 25/-. MEHROTRA, J. : (6) I agree with the order proposed. There is one further argument advanced by the opposite party which may be considered. Order 43 Rule l(w) provides that an order under Rule 4 of Order 47 granting an application for review is appealable. It is contended that this gives very wide powers to. the appellate court to interfere with the order granting review on any of the grounds mentioned under Order 47 Rule 7. But, in our opinion, Order 43 Rule l (w) is subject to Order 47 Rule 7 of the Code of Civil Procedure and the powers of the appellate court are, therefore, restricted by the provisions of i Order 47 Rule 7 of the Code. In the present case, i the appellate court having interfered with the order I granting review on the grounds outside the ambit | of Order 47 Rules 7 and 4, his decision was without !
In the present case, i the appellate court having interfered with the order I granting review on the grounds outside the ambit | of Order 47 Rules 7 and 4, his decision was without ! jurisdiction and we can under S. 115 of the Code ! of Civil Procedure interfere with that order. ID/K.S.B. Rule made absolute.