An order pronouncing judgment by improper exercise of powers under Order 10, Rule 4 (2), C.P.C. is an error apparent on the face of the record and a review petition against such an order is maintainable.

V.R. NEWASKAR, J.

1. The only substantial question involved in this petition for revision is as regards the competency of a review petition against an order pronouncing judgment by the improper exercise of powers under Order 10, Rule 4 (2) of the Civil Procedure Code.

2. The opponent-plaintiff filed the present suit, out of which this revision petition arises, for a declaration regarding her title to certain land as the sister heir of one Somli. The suit was filed against the four defendants who claimed title to the said land and whose names were directed to be mutated in place of deceased Somli.

3. The defendants contested the suit claiming that they were the sons of Jomlya who was the brother of the plaintiff and deceased Somli. They put forward their preferential right.

4. The written statement incorporating the aforesaid pleas was submitted on 28-9-1957. The court thereupon asked the plaintiff to file a rejoinder and at the same time required the parties to remain present on the next date to which the suit was adjourned namely 21-10-1957. On the adjourned date the plaintiff's counsel informed that the plaintiff did not want to file any rejoinder. The court thereupon required the parties to remain present on the next date of hearing which was fixed on 8-11-1957. On that day the defendants did not remain present. An application for adjournment was however submitted on behalf of the defendants that the defendant was ill and could not attend the court that day. The court allowed the application and fixed 26-11-1957 as the next date. On that day the plaintiff's counsel was present but neither the defendant's counsel nor their counsel were present. The court thereupon at once proceeded to pronounce judgment against them by recourse to Order 10, Rule 4 (2), C.P.C.

5. No appeal was preferred against this order although the same is appealable under Order 43, Rule 1 (e), C.P.C.

6. However, a petition for review of the aforesaid order was submitted to the trial court on the ground that having regard to the pleadings of the parties presence of parties was not required, that no clarification was sought from the defendants' counsel regarding any imperfection in the written statement of the defendants' and that necessary conditions for the applicability of Order 10, Rule 4 (2) were consequently not present in the case. The exercise of powers under the said provision therefore involved an error apparent on the face of the record justifying its review.

7. The petition for review was opposed on behalf of the plaintiff. During the pendency of this petition plaintiff Fundhbai died. Her legal representatives were therefore brought on record.

8. The trial court after hearing arguments of the counsel on either side rejected the review petition chiefly on the ground that neither erroneous view of law, nor erroneous exposition or application of any provision of law can amount to an error apparent on the face of the record. Reliance was sought to be placed by the learned Judge upon the decisions reported in A.I.R 1957 Nag 97 Mohd. Hussain Khan Vs. Ahmad Hafiz and 1959 M.P.L.J. 476 Mohd. Hasan Khan Vs. Ahmad Hafiz Khan.

9. The present revision petition is directed against that decision.

10. Mr. Pandey appearing for the petitioners strongly urged that this is a clear case where there is an error apparent on the face of the record as the order dated 26-11-1957 pronouncing judgment against the petitioners when read along with the provisions of Order 10, Rule 4, C. P. C. would clearly show that the said order was passed by the trial court without applying its mind to the requirements of law for the exercise of that power. The learned counsel relied upon the decisions reported in A.I.R. 1933 All 517 Parmarth Vs. Krishna Dayal and A.I.R. 1949 FC 106 (110) Hari Shankar Vs. Anath Nath, in support of his contention that the review petition was competent under the circumstances of the present case and rejection of that revision petition justifies the exercise of t