Rahimal Bathu & Others V/S Ashiyal Beevi [Arising out of SLP (C) No. 8428 OF 2018]
The Supreme Court ruled that there is no room for revision in Section 115 of CPC after review rejection.
The division bench of Justice Pamidighantam Sri Narasimha and Justice Manoj Misra observed that from the provisions of Order XLVII of the CPC it is clear that an order rejecting a review application is not appealable.
It was further observed that where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order, whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier.
The bench said that the decree so vacated, reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law. But where the review petition is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition.
“Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition”, the court added.
The respondent instituted an Original Suit for declaring her as the exclusive owner of the property described in the second schedule of the plaint. Additionally, possession of the said property was sought. In the alternative, it was prayed that, if the court concludes that she is not the exclusive owner of the property, her share therein be declared one-sixth and the same be partitioned accordingly.
counsel for the appellants submitted that assuming that the revision was maintainable, High Court could not on its own modify the trial court’s decree which was not the subject matter of challenge before the High Court.
Per contra, the counsel for the respondents submitted that against an order rejecting a review application, no appeal lies. The term “Case”, used in Section 115 of the CPC, is a word of comprehensive import and includes civil proceedings other thanthe suit, therefore, there can be no legal bar in entertaining a revision against rejection of a review application.
The Apex court stated that there is another reason also for a revisional court not to entertain a revision against an order rejecting on merits an application for review of an appealable decree, which is, if the revisional court sets aside or modifies or alters a trial court’s decree, the decree of the trial court would merge in the one passed by the revisional court. In consequence, the right of the party aggrieved by the trial court’s decree to file an appeal would get affected.
It was viewed by the court that where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree.
The bench ruled that the proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed.
The court held that the revision of the respondent against rejection of her application for review of an appealable decree ought not to have been entertained by the High Court.