ORDER

Leave granted.

2. We make it clear at the outset that we are not expressing any opinion on merits as regards the contentious controversy between the parties in the dispute in several suits in the High Court on the original side and appeals arising thereunder and some orders passed by this Court in that behalf. We are concerned in this appeal with the legality of the order of the learned single Judge in review order dated December 23, 1994 in appeal No. 514/92.

3. The admitted position is that there was an agreement between Terai Tea Co. Pvt. Ltd. said to be having shares and represented by Ajit Kumar Agrawal as its managing Director who was said to be in the management of Dharanipur Tea Estate and the appellant for sale of tender and good quality green tea leaves of the Dharanipur Tea Estate and consideration thereof a sum of Rs. 20 lakhs was advanced. It is not in dispute that Rs. 20 lakhs came to be deposited with a Court Receiver in a pending suit. The appellant filed the suit No. 89/91 for specific performance of the said agreement. In that suit, an application for ad interim injunction under Order 39, Rule 1, CPC was filed but the same was dismissed. On appeal, by consent of the parties, the suit itself was taken up. While dismissing the suit for specific performance, the Division Bench by judgment dated April 25, 1994 directed refund of a sum of Rs. 19,33,873.74 which was with the Court Receiver with interest thereon to the account of the suit maintained by the Court Receiver. Thereafter an application for review came to be filed. In the impugned order the learned Single Judge held that the direction for refund of the amount was bad in law. Calling that order in question, this appeal has come to be filed.

4. It is contended by Dr. Shankar Ghosh, learned senior counsel for the appellants that the view of the learned Single Judge is clearly erroneous for the reason that it is not an error apparent on the face of the record warranting review under Order 47, Rule 1, CPC. At best, it would be a case for an appeal against the judgment of the Division Bench, but, admittedly, no appeal came to ne filed. We find force in the contention advanced for the appellants. It is an admitted position that in respect of the management of the estate of Dharanipur Tea Estate a contract came to be executed between Terai Tea Estate which was said to be in its management at the relevant time, and the appellant for sale of tender green leaves of the tea grown in the said estate. The suit for specific performance of that agreement came to be dismissed. One of the covenants in the agreement was that he was entitled to the specific performance. Since the specific performance was not granted alternative relief sought for refund of the amount was granted. Therefore, when the decree for refufnd was granted, whatever may be the demerits in the grant of decree that will be only correctable in an appeal. The ground given by the learned Single Judge to review the order was that since the amount came to be deposited in another suit but not in relation tot the suit for specific performance, the decree for refund was not valid in law. The view of the learned Single Judge is wholly illegal. So long as the amount came to be deposited with Court Receiver in pursuance of the contract of the agreement, when the contract was found to be not specifically enforced, the decree for refund was rightly granted. The appellant is entitled to follow and keep track upon the estate wherever the amount lies and entitled to recover the same in pursuance of the decree. It would be immeperial in which suit the amount came to be credited by the Receiver. Under those circumstances, the learned Judge has committed grievous error of law in reviewing the order.

5. We need not go into the controversy and wisdom whether the learned single Judge alone can review the decree in the appeal of a Division Bench though one of the learned Judges of the Division bench happened to reti