Filing a review petition does not bar filing an appeal under Order 47 Rule 1 CPC.

JAYANT NATH, J.

CM No. 4081/2017

Allowed subject to all just exceptions.

CM No.4082/2017

For the reasons stated in the application the delay of 10 days in re-filing the petition is condoned. Application is allowed.

CM(M) 130/2017 & CM No.4080/2017 (stay)

1. The present petition is filed under Article 227 of the Constitution of India seeking to impugn the order dated 15.10.2016 passed by the appellate court disposing of a preliminary issue regarding maintainability of the appeal.

2. The petitioner seeks to raise a legal plea, namely, that in case the appellant files a review petition against a judgment in terms of order 47 CPC he cannot file an appeal against the same order.

3. The appellate court where this objection was raised in the appeal filed by the respondent after going through the legal position and the judgments of the Supreme Court concluded that if a review petition is filed before filing of the appeal, the review petition is maintainable. If the appeal is filed thereafter i.e. after the review had been filed and is disposed of before the review petition is decided, the jurisdiction of the court hearing the review petition comes to an end.

4. I have heard learned counsel for the parties.

5. Order 47 Rule 1 CPC reads as follows:-

“1. Application for review of judgment.-(1) Any person considering himself aggrieved,—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

6. Hence, in view of the above provision a review would lie from a decree or order from which an appeal is allowed but from which no appeal has been preferred. The contention which is sought to be raised by the petitioner is that a litigant who has sought to file a review against a decree or order cannot thereafter maintain an appeal against the same order in view of the above order.

7. Learned counsel appearing for the petitioner has strongly relied upon judgment of the Supreme Court in Rekha Mukherjee vs. Ashish Kumar Das & Ors., (2005) 3 SCC 427 wherein it was held as follows:-

“17. The suit filed by the Respondents for grant of specific performance of contract was dismissed. The said decree although was appealable but in view of the order dated 15.7.2002, the said decree in its entirety ceased to operate. Order XLVII Rule 1 CPC postulates filing of an application by a person considering himself aggrieved, by a decree or order from which an appeal is allowed but from which no appeal has been preferred, to file an application if he desires to obtain a review from a decree passed against him. An appeal during the pendency of the review petition was, therefore, not maintainable. In terms of Order XLVII Rule 4, the Court may either reject or grant an application for review. In case a review is rejected, the order would not be appealable whereas an order granting an application may be objected at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Rule 8 of Order XLVII of CPC postulates that when an application for review is granted, a note thereof shall be made in the register and the court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.”

8. The court further clarified as follows:

“31. The doctrine of eclipse has no application in a case of this nature. An appeal preferre