A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant or when being respondent he can present to the Appellate Court the case on which he applies for the review.

( 1 ) THIS is an application for review of the judgment and order dated 25/04/1994 passed by the Division Bench to which I was a party. By the said judgment and order Appeal No. 514 of 1992 was dismissed but it was held that the appellant M / s. Abhijit it Tea Company Pvt. Ltd. was entitled to be paid back the sum of Rs. 19,33,873. 74 p. lying with the Registrar, original side of this Court being part of the amount deposited by the Registrar pursuant to the order of the Division Bench dated 10/10/1991. By the said order dated 25/04/1994 we directed the Registrar, original side of this Court to pay the said sum of Rs. 19,33,873. 74 p. with accrued interest thereon to M/s. Abhijit Tea Co. (P.) Ltd. after deducting his commission within 4 weeks from the date of the said judgment and order.

( 2 ) THE New Red Bank Tea Co. Ltd. and Sri Rebin Pal who are the respondents Nos. 4 and 5 in the said Appeal No. 514 of 1992 being aggrieved by the said direction of refund of the sum of Rs, 19,33,873. 74, with accrued interest, have filed the instant review petition.

( 3 ) THE Learned Advocate for the respondent raised an objection as to maintainability of the review application.

( 4 ) THE main objection with regard to maintainability of the review application as urged by Mr. Dutt, Learned Advocate for the respondent is that since Abhijit Tea Company (P) Ltd. has preferred a special leave petition before the Supreme Court against the order dated 25/04/1994, the review application is not maintainable. It, however, appears to me that the said objection is not valid in view of the provision contained in O. XLVII R. 1 (2) of the C. P. C. which reads as follows: -" (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant or when being respondent he can present to the Appellate Court the case on which he applies for the review. "

( 5 ) IT appears from record that special leave petition has been filed against the order dated 6/05/1994 passed by me in the review application. No record has been produced to show that Special Leave Petition against the judgment and order of the Division Bench dated 25/04/1994 has been made although it has been submitted by the Learned Advocate for the respondent that Special Leave petition has been filed.

( 6 ) BE that as it may, even assuming such Special Leave petition has been filed the respondent Abhijit Tea Co. (P) Ltd. could not have preferred an appeal against the directions for refund of the said amount of Rs. 19,33,873. 74 which is in its favour and there cannot be any common ground for such application and the present application for review.

( 7 ) IT has been urged on behalf of the respondent that since the earlier review petition was rejected by me as the same was not according to form, the instant review application is also not maintainable. This contention of the Ld. Advocate for the respondent does not appear to me to be sound since the first review petition was not decided on merit. Accordingly the said objection cannot be sustained.

( 8 ) IN the case of Colam Kabir v. D. S. R. Ebenezer reported in (1986) 2 Cal HN 40, the facts involved were that on an application filed by the tenant petitioner under Ss. 17 (1), 12 (2) and (a) (3) and (b) of the Tenancy Act, the Court though found that the tenant was in arrears of rent for 68 months, held that the petitioner was a defaulter for 50 months and, accordingly, directed the petitioner to pay the arrears of rent at the rate of Rs. 600. 00 per month in addition to the current rent but the Court did not direct him to deposit the statutory interest on the total amount of arrears of rent. The opposite party filed an application for review of the order. The petitioner thereafter filed a revisional application before the High Court against the said order. But ultimately w