Misapprehension of Counsel leading to errors in judgment can constitute a sufficient reason for review under Order 47, Rule 1 of the Civil Procedure Code.

Patanjali Sastri, J.

1. This appeal arises out of a suit brought by the appellants for a declaration of their title to the wall existing between their house and the house belonging to the respondents and for an injunction restraining the respondents from letting the water from the terrace of their house into the appellants property.

2. The trial Court dismissed the suit and on appeal the parties filed a joint memo, agreeing to a certain arrangement regarding the disposal of the water falling from the terrace of the respondents house and this arrangement was directed to be incorporated in the decree and no question now arises as to that part of the case. As regards the wall in dispute, the learned Subordinate Judge found that it belonged to the appellants and accordingly decreed that part of the appellants claim. This was on the 23rd September, 1935. After the judgment was signed and the decree also was issued in accordance with the judgment, the respondents filed I.A. No. 63 of 1935 on the 15th of October, 1935, in which they prayed for a re-hearing of the appeal. The ground of the prayer was that though the trial Court had found that the wall belonged to the respondents, their advocate represented to the Court that they would have no objection to the wall being held to be a common wall and that under the impression that the Court would, in consequence of this concession, give a finding accordingly, he did not meet the points mentioned by the appellants advocate, though he had arguments to urge in support of the finding of the trial Court. The respondents having denied the allegations in the appellants affidavit in support of the prayer for re-hearing, the lower appellate Court apparently called for a statement from the Counsel on both sides as to what exactly happened at the previous hearing and a joint statement was filed on the 30th of October, 1935, and this was supplemented by a further explanatory statement by the respondents Counsel. Thereupon, the Court below passed the following order on I. A. No. 68 of 1935 on the 31st of October, 1935:

In view of the joint statement filed by the learned Advocates that appeared for the parties and of the explanatory statement filed by the learned Advocate for the applicant, I think it fair and just that he should be given an opportunity to argue his case fully. The appeal will therefore be posted for re-hearing on 21st November.

3. The appeal was thus re-heard and the learned Subordinate Judge came to the conclusion that the wall in dispute was a common wall belonging to both the parties and passed a decree accordingly in supersession of his earlier decree.

4. The present appeal is directed against the decree passed on re-hearing and the only point urged by the learned Counsel for the appellants is that the lower appellate Court had no jurisdiction after it delivered and signed the judgment on the 23rd September, 1935, to alter it in any manner, in view of the provisions of Order 20, Rule 3, Civil Procedure Code, and that therefore the revised decree passed by the lower appellate Court as a result of the re-hearing on the 21st November, 1935, is one passed without jurisdiction and cannot stand. The appellants Counsel has relied upon several decisions showing that after a judgment has been signed by the Judge, he has no authority to alter it except as provided by Section 152 or Order 47 of the Code of Civil Procedure. But it is unnecessary to discuss these decisions as, in my view, the respondents contention that the present case could be regarded as coming within the provisions of Order 47 and that though this provision was not referred in the respondents application for re-hearing, I.A. No. 68 of 1935, the decree of the Court below can be sustained as one made on review, is correct and must be accepted in the circumstances of the case.

5. The appellants counsel objects that having regard to the Privy Council decision in Chhaju Ram v. Neki (1922) 43 M.L.J. 332 : L.R. 49 IndAp 144 :