( 1 ) THE Defendants had filed two applications for the passing of a decree under Order XXIII Rule 3, both of which were dismissed on 19/8/1999. On that date there was no representation on their behalf and I was pursuaded to reject the applications also for the reason that they were unilateral actions of the defendants/applicants. Dates of Trial had already been fixed and evidence was accordingly led by the Plaintiff on 7. 12. 1999; on the previous date i. e. 6/12/1999, the matter had been adjourned on the request of the plaintiff. The present application was filed by the defendants on 7/12/1999.

( 2 ) THIS application under Section 5 of the limitation Act is for condoning the delay in filing the accompanying application for Review (I. A. 12340/1999 ). The reason ascribed by the Defendants/applicants for not being present on 19/8/1999 is that when they appeared before Court on 5/4/1999 they inadvertently and due to bona fide mistake did not note the next date of 19/8/1999 and consequently appeared on 6/12/1999 which had been previously fixed. Knowledge of the dismissal of the compromise application was gained only on 6/12/1999 and the Review and its condonation were filed the next day.

( 3 ) ALTHOUGH it discloses negligence on the part of the Defendants, I accept this version and reason for non-appearance on 19/8/1999 and the consequent delay in filing the Review. The application is allowed, subject to costs of Rs. 750. 00.

( 4 ) LEARNED Counsel for the Plaintiff firstly assailed the application on the preliminary ground that it was not maintainable under the relevant provisions of the CIVIL PROCEDURE CODE. , that is Section 114 and Order XLVII As the provisions of the Order must perforce take their colour from the Section, the latter is reproduced below :

REVIEW: "114. Subject as aforesaid, any person considering himself aggrieved:- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Court, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of Judgment to the Court which passed the decree or made the order, and the Court may make such order thereon a? it thinks fit. "

( 5 ) A scrutiny of Order XLIII will reveal that the rejection of application under Order XXIII is not. appealable, but such an order can be as-sailed if an appeal against the Judgement, is filed, as envisaged in rule 1-A of Order XLIII. This provision was introduced by the CIVIL PROCEDURE CODE (Amendment) Act 1976. This being the position Section 114 would indicate that once a Review is maintainable on either of. the, contingencies covered by sub-sections (a) or (b) the Court may make such order thereon as it thinks fit. " I am however unable to agree with the submission of Learned Senior Counsel for the Defendants/applicants that the Court is invested with total discretion. Keeping in view the provisions of Order XLIII Rule 1a, it would appear to be inappropriate for the Court to pass any orders in the present case, since the Defendant is expected to assail the order only if an appeal against, the Judgment is filed.

( 6 ) THE next question that would arise is whether a review is to be entertained when the relevant order has been passed ex parte. It appears beyond debate that such a petition cannot be employed to seek a rehearing of the matter. The difference between these actions has been clarified in Grindlays Bank Ltd. Vs. The Central government Industrial Tribunal , AIR 1981 SC 606, where again it was emphasised that in a Review the court must only consider the propriety of the order. In avtar Singh Vs. Union of India, AIR 1980 SC 2041, the court had cautioned against this provision being treated in a routine manner. The Court had enjoined that only if an error which is manifest on the face of the record, undermines the soundness of the order or results in miscarriage of just