The main legal point established is that an order can merge with previous orders and attain finality, rendering subsequent appeals not maintainable.

S.N.Hussain, J.

1. This first appeal has been filed by the applicant-appellant against the judgment and order dated 17.10.2006 by which Subordinate Judge-1, Patna dismissed Misc. Case No. 25 of 2003 which was filed by the appellant under Order XXI Rule 97 C.P.C. in Execution Case No. 12 of 1995 claiming that the suit land constituted part of the ancestral lands of Mitakshara joint family of which appellant was one of the coparceners alongwith respondent no. 2 and hence respondent no. 2 had no right to alone enter into an agreement for sale of the entire joint family property with respondent no. 1 without the consent of the appellant and accordingly the deed of agreement for sale executed by the respondents was not binding on the appellant who had independent right in the coparcenary but was neither impleaded in Title Suit No. 97 of 1982 nor was made party in F.A. No. 697 of 1985 as well as in Execution Case No. 12 of 1995, which was filed for execution of the decree passed in F.A. No. 697 of 1985.

2. At the time of final hearing of this case, learned counsel for respondent no. 1 raised a preliminary objection that the instant First Appeal was not maintainable as it was against an order by which a Miscellaneous Case under Order XXI Rule 97 C.P.C. was dismissed after hearing both the parties. It was further claimed that against the impugned order dated 17.10.2006 the appellant had filed Review No. 39 of 2006 which was dismissed by Subordinate Judge-1st, Patna vide order dated 10.6.2008 which was challenged by the appellant in C.R. No. 1149 of 2008 which was dismissed as withdrawn by a Bench of this High Court on 5.9.2008. Hence, he averred that the impugned order dated 17.10.2006 passed by Subordinate Judge-1, Patna merged with his order dated 10.6.2008 passed in the review case and both of them merged with order dated 5.9.2008 passed by the High Court in the aforesaid Civil Revision. He also stated that Civil Revision No. 1149 of 2008 was withdrawn simpliciter by the appellants without any rider or condition or liberty, hence, the impugned order dated 17.10.2006, having merged with the High Court order dated 5.9.2008, has attained finality and, cannot be interfered with in this First Appeal which is only against order dated 17.10.2006 passed by Sub-ordinate Judge-1, Patna in the Misc. Case.

3. Against the preliminary objection of the respondent regarding maintainability of the First Appeal, learned counsel for the appellant replied that challenging the impugned order dated 17.10.2006 revision and review both were filed by the appellant because he was entitled to file both on different grounds; if it was bad on merits civil revision could be filed; and if there was patent error on the face of the record civil review could be filed, specially when order dated 17.10.2006 was a cursory order although it had to be a detailed judgment as if a suit was being decided as provided under Order XXI Rule 97 C.P.C. Hence he stated that in the aforesaid circumstances the appellant did not take any chance and after filing of review petition bearing Review No. 39 of 2006, he also filed a civil revision bearing C.R. No. 148 of 2007 as a precautionary measure against the same order dated 17.10.2006 but subsequently the said civil revision was converted into the instant F.A. No. 66 of 2007.

4. Learned counsel for the appellant stated that his Review No. 39 of 2006 was dismissed on 10.6.2008 against which he filed C.R. No. 1149 of 2008 and the said civil revision was dismissed as withdrawn on 5.9.2008 in view of the fact that the original order of the Subordinate Judge dated 17.10.2006 still remained to be considered and decided in First Appeal No. 66 of 2007 and in those circumstances, this Court gave no finding on merits of the case in its order dated 5.9.2008. Learned counsel for the appellant further stated that while granting permission to convert C.R. No. 148 of 2007 into the instant First Appeal vide order dated 28.2.2007 the questi