The main legal point established in the judgment is that a review application under the Civil Procedure Code must satisfy the grounds for review as provided in the relevant provisions, and failure to do so will result in the dismissal of the application.

Prasenjit Mandal, J.

1. THIS application is at the instance of the defendants and is directed against the order no.21 dated April 29, 2008 passed by the learned Civil Judge (Senior Division), Kandi, Murshidabad in Title Appeal No.2 of 2005 thereby rejecting an application under Order 47 read with Section 114 of the C.P.C. filed by the defendants.

2. THE short fact is that the predecessor-in-interest of the opposite parties herein, namely, Sabitri Saha, instituted the Title Suit No.83 of 1993 against the present petitioners for declaration and permanent injunction. That suit was dismissed on contest. Being aggrieved, the opposite parties preferred an appeal being Title Appeal No.2 of 2005 and that appeal was allowed by the judgment and decree dated November 15, 2007 declaring the right, title and interest of the opposite parties in the suit property. THE petitioners were restrained permanently from interfering with the plaintiffs portion over the suit property. Thereafter, the petitioners preferred a review application on December 7, 2007 stating, inter alia, that the predecessor-in-interest of the opposite parties had no title to the suit property. Previously, the predecessor-in-interest of the plaintiff had no right to transfer the suit number in favour of the opposite parties as the petitioners obtained a decree in Title Suit No.26 of 1993 against the predecessor-in-interest of the opposite parties, namely, Sabitri Saha. The opposite party preferred an appeal no.43 of 2001 against the said judgment and decree in Title Suit No.26 of 1993 and the appeal was dismissed on contest. So, by suppressing the material facts, the opposite parties got the judgment and decree by the learned appellate court. Under such circumstances, the petitioners filed an application under Order 47 read with Sections 114 and 151 of the C.P.C. and that application was rejected by the impugned order.

3. BEING aggrieved, this application has been preferred. Upon due consideration of the submission of the learned Advocate for the petitioners and on perusal of the materials on record, I find that the petitioners contested the Title Suit No.83 of 1993 and the Title Appeal No.2 of 2005 all along. In order to make a prayer for review, the petitioner has to satisfy either of the ingredients, as provided in Order 47 Rule 1 read with Section 114 of the C.P.C. No doubt, that after dismissal of the Title Appeal No.2 of 2005 a second appeal could have been preferred by the petitioners. But they did not do so. It is not the case that they are not entitled to file any second appeal. In such a situation, I am to consider whether the petitioners have been able to prove the ground as provided in Order 47 Rule 1 (c) read with Section 114 of the C.P.C., i.e., the petitioners described a new and important matter or evidence which, after exercise of due diligence, they are not able to find out the same. The other title suit and namely Title Suit No.26 of 1993 and the Title Appeal No.43 of 2001 were also being contested by the respective parties. On perusal of the materials as furnished in support of the application, I do not find anything where that the petitioners have stated that in spite of their due diligence, they could not describe the matter of the other suit earlier or that it was not within their knowledge. Therefore, I am of the view that the petitioners have failed to prove the grounds of review as laid down in Order 47 Rule 1 (c) read with Section 114 of the C.P.C.

4. MR. Ghosh, learned Advocate appearing on behalf of the petitioners, submits that when a decree is obtained by practising fraud or misrepresentation on it upon court, the court or tribunal has inherent power to recall the orders. In support of his contention, he has relied on the decision of P. Satyanarayana Vs. The Land Reforms Tribunal and ors. reported in AIR 1980 Andhra Pradesh 149, relevant paragraph 13. But with due respect to MR. Ghosh, I am of the view that the petitioners are required