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Civil Revision Application No. 43 of 1980 decided on 20th May, 1987.

---O. XLVII--Review--Scope--Scope of review is limited.

---O.XXXVII, R.3 & XLVII--Suit for recovery--Trial Court holding suit time-barred by one day and dismissing suit--Counsel of both parties filing a joint statement before appellate Court to the effect that trial Court had acted under a misconception with regard to limitation and that case be remanded to trial Court for decision on all issues involved in suit--Appellate Court remanding case to trial Court on all issues except issue relating to limitation and recorded finding that suit was within time-petitioner defendants whose review application was also dismissed by Additional District Judge/Appellate Court, contending that in view of a joint statement of counsel of both parties, appellate Court could not exclude issue on question of limitation while remanding case--Held, Additional District judge/appellate Court was competent either to accept statement in toto of counsel of parties or not to accept, as trial Court had not decided other issues--Order of appellate Court remanding case to trial Court after deciding issue of limitation, which was decided by trial Court, was as such not illegal.

Syed Zaki Mohammad for Petitioners.

Qazi Zisul Haq for Respondent.

Date of hearing: 20th May, 1987.

This Revision is directed against an order dated 9-10-1979 passed by the learned Ist Additional District Judge. Hyderabad upon an application of review under Order XLVII read with Section 151 C.P.C. filed by the present applicants against the order dated 13-8-1979.

2. The brief facts leading to the filing of the above Revision are that the Suit No. 297/72 in the Court of Civil Judge Hyderabad was filed by the respondent's predecessor M/s. Commerce Bank Limited in 1972 for the recovery of Rs. 11,331.79. The above suit was resisted inter alia on the ground of limitation. The learned trial Court on the basis of the pleadings of the parties framed 7 issues. Issue No. 1 being the issue on the question of limitation was tried as a preliminary issue which was decided by the learned trial Court by its judgment and decree dated 23-5-1977 in favour of the petitioner and it was held that suit was time-barred by one day. The respondent being aggrieved by the above judgment filed Civil Appeal No. 233/1977 which was heard by the learned 1st Additional District Judge Hyderabad before whom the learned counsel for the parties filed joint statement, which reads as under:-

"Suit, in the lower court was decided on the point of limitation inasmuch as it was found to have been filed a day beyond the period of limitation. Parties concede that lower Court had been under misconception in regard thereto. Honourable Court had however not considered either merits of the case of arguments of respondents on the point of limitation. Accordingly parties concedes that the judgment and decree of the learned lower court may be set aside and the case be remanded for decision on all the issues involved in the suit.

Sd/-Advocate for the appellant.

Sd/-Advocate for respondents No. 1 & 2.

Hyderabad.

Dated: 13-8-1979."

However, the learned Additional District Judge by his judgment/decree dated 13-8-1979 remanded the case to the learned trial -Court on all issues except the issue No. 1 on the question of limitation upon which he recorded finding that the suit was within time. The petitioners filed aforesaid review application against this order which was dismissed by the learned 1st Additional District Judge by his judgment dated 9-10-1979. The petitioners being aggrieved by the above order have filed the present Revision.

3. In support of the above Revision, Mr. Zaki learned counsel for the petitioners has submitted that since through the joint statement, the Advocates for the parties requested that the case be remanded to the trial Court for decision on all the issues, the learned Additional District Judge was not justified in excluding issue No. 1 on the question of limitation while remanding the case.

Whereas Mr. Qazi Ziaul Haq learned counsel for the respondent has submitted that the petitioners have not filed the revision against the aforesaid judgment and decree dated 13-8-1979 and, therefore, this point cannot be agitated. His further submission was that the learned Additional District Judge was competent to decide the issue No. 1 himself and to remand the case on the remaining issues.

4. I have noticed from the memo of the revision that this revision petition is directed against .the review order and not against the aforesaid judgment and decree. In this view of the matter, the point urged by Mr. Zaki cannot be looked into. The only question is, whether the learned Additional District Judge was justified in declining the review. It will suffice to observe that the scope of review is limited, which is evident from the provision of Order XLVII. There was no error apparent on the face of the order entailing grant of review petition. It was open to the learned Additional District Judge either to escape statement in toto of the learned counsel for the parties or not to accept as the trial Court had not decided other the issues. The learned Additional District Judge after recording his finding on issue No. 1 which was decided by the trial Court, remanded the case for trial on the remaining issues. There is nothing illegal in the above order. The petition has no merits arid therefore it is dismissed with no order as to costs.

M.Y.H./S-127/K Petition dismissed.

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