“No revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree,” says the Supreme Court

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While hearing the Rahimal Bathu & Others vs. Ashiyal Beevi case, the Supreme Court ruled that a review petition, under Section 115 of the Code of Civil Procedure (CPC), 1908, against rejection of a review application of an appealable decree by a subordinate court on merits cannot be entertained. The matter was heard by a two-judge bench of the Supreme Court including Justice Manoj Misra and Justice PS Narasimha. The order reads, “...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 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.”

During the court proceedings, the SC noted that “...in the case at hand there was already an appealable decree in existence when the revisional powers were invoked.” The revision petition was filed against the rejection of that review petition and the trial court dismissed the application on merits. Further, the bench observed that “If it (trial court) had granted the review, the aggrieved party would have had a right to file an appeal under Order XLIII Rule 1 (w) read with Order XLVII Rule 7 of the CPC. And if it had allowed the review and simultaneously altered/modified/reversed the decree, the aggrieved party would have had a right to file an appeal against the said decree. But, if the revisional court does the same, as has been done by the High Court while passing the impugned order, an anomalous situation would arise. The decree passed by the trial court would stand modified by the High Court. Therefore, if the defendant(s) against whom the decree is passed were to challenge the same, they would be at a disadvantage on account of the merger.”

Furthermore, the Supreme Court bench said, “...if the revisional court’s order is allowed to stand, owing to modification of the decree by the revisional court, to which in normal course an appeal would lie, the right of an appeal to the aggrieved party would get seriously prejudiced.” It added “...there may be a case where a person is aggrieved by a finding of the trial court on any issue, even though the trial court’s decree may be in its favor. In that scenario, if there is an appeal by a party aggrieved by the decree, that person would have a right to take an objection against the adverse finding with the aid of the provisions of Order XLI, Rule 22 of the CPC, but in the event of there being no appeal against the decree, such a person would lose its right to take an objection, under Order XLI, Rule 22 of the CPC, against that adverse finding.”

The bench also observed that in a case at hand, where the review was allowed and the decree/order under review was reversed or modified, such order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneously with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The Supreme Court highlighted that “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.” At last, the SC concluded the judgment stating 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. The appeal is, therefore, allowed. The impugned judgment and order of the High Court is set aside.”