Order of rejection of review petition if to be construed as judgment.

This is an appeal under- clause 15 of the Letters Patent against an order of Rajagopalan, J., dismissing an application by the Appellant for review of the order made by him on 26th April, 1950, ‘directing a preliminary decree for partition to be passed. The learned Judge says it was virtually a consent order. But that circumstance does not make a material difference so far as the point on which we think this appeal should be disposed of is concerned. In our opinion, we think that no appeal lies against the order.

The application for review was filed evidently under Order 47, rule 1, Civil Procedure Code. Order 47, rule 7, of the Code clearly says that an order rejecting an application for review is not appealable. Obviously, that should conclude the matter. It was, however, contended by Mr. Gopalakrishnan, on behalf of the appellant, that in spite of the express provision in Order 47, rule 7, the order in question would be a “judgment” within the meaning of clause. 15 of the Letters Patent as interpreted by the Full Bench in Tuljaram Row v. Alagappa Chettiar1 and that therefore an appeal would lie. In Achaya v. Ratnavel2 it was held by a Bench of this Court (Muttuswami Ayyar and Parker, JJ.) that section 15 of the Letters Patent is controlled by section 629 of the then Civil Procedure Code (corresponding to Order 47, rule 7 of the present Code) and therefore an appeal is not maintainable against an order rejecting an application for review of judgment. With great respect we follow the decision and hold that the present appeal is incompetent. Even otherwise, we have no hesitation in holding that the order in question is not a judgment within the meaning of clause 15 of the Letters Patent. The order did not put an end to the suit, but had allowed the suit to proceed in its usual course towards a final decree.

The appeal is, therefore, dismissed with costs.

K.C. ----- Appeal dismissed.