Case: Bhawanipore Banking Corpora-Tion, Ltd Vs. Gouri Shankar Sharma

2. The facts may be briefly stated as follows. On 21/08/1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On 19/09/1940, themade an application under Or.9R.13, Code of Civil Procedure, 1908 , for setting aside the ex parte decree, but this application was rejected on 7/06/1941. On 11/07/1941, thefiled an application under S. 36, Bengalor reopening the preliminarydecree, but this application was dismissed for default of appearance on 20/12/1941. Thereafter a final mortgage decree was passed in favour of the appellant, on 22nd December. The judgment, debtor then made an application under Or.9R.9, Code of Civil Procedure for the restoration of the proceedings under. S. 36,Act. The application was, however, dismissed on 1/06/1942, both on the ground that no sufficient cause for theof the applicant and his failure to take steps in the proceedings was shown and on the ground that no purpose would be served by reopening the preliminary decree after the final decree had been passed. The judgementdebtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under O. 9, R 9, but the appeal was dismissed foron 3/07/1944. On 9/04/1945, the appellant filed an application for executing the decree against the originalthough he had died previously, and this application was dismissed for default on 11/05/1945. On 2/06/1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.

Reasoning: In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, BengalAct was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36for reopening thedecree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36,Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing theapplication under S. 36 forargument also is a highlyone, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.