The power of review cannot be used to sit in appeal over its own order and rehearing is impermissible in law.

The Review Application is directed against the order in S.A.No.387 of 2004. The respondents in the above Second Appeal are the petitioners. The proceedings emanate from a suit for specific performance filed by the respondents herein on the file of the Subordinate Court, Tindivanam in O.S.No.152 of 1994.

2. The suit was decreed as against which the review petitioners had filed A.S.No.16 of 2003 on the file of the Additional District [Fast Track Court No.1], Tindivanam. The Appellate Court reversed the judgment and decree of the learned Subordinate Judge, Tindivanam against which the respondent herein had filed the Second Appeal which is the subject matter of the review. I am restricting my consideration to the review and the grounds raised during the arguments.

3. Mr. Ajmal Khan, Senior Advocate appeared on behalf of the counsel for the Review Petitioner. The learned Senior Counsel has made the following submissions seeking a review of the judgment and decree dated13.03.2004 in S.A.No.387 of 2004.

(i) This Court had raised additional substantial question of law, during the course of argument of the second appeal and while framing these issues the provision of Section 100 (5) has not been taken note of.

(ii) The property in question not only belongs to respondents 1 to 3 but also to the adult children of the 1st respondent and these children have not been made parties to the agreement of sale.

(iii) That the respondents herein had not made the deposit of the balance sale consideration to date.

4. As regard the first point the learned senior counsel would argue that the additional substantial questions of law was framed at the time of hearing and therefore the procedure contemplated under Section 100(5) has been ignored. It is his contention that the procedure which is contemplated therein has to be strictly followed and any deviation from this would render the judgment perverse.

5. The learned Senior Counsel would contend that the questions of law which have been framed contrary to the procedure contemplated has also been answered in favour of the respondent which has caused grave prejudice to the review petitioners. He relied on the judgment reported in 2018 (5) JT Page 257 Vijay Arjun Bhagat and Ors. Vs. Nana Laxman Tapkire and Ors. wherein the Hon’ble Supreme Court had dealt with the procedure prescribed under Section 100 of the Code and the Hon’ble Supreme Court had held that while exercising the powers contemplated under the proviso to sub section 5, the High Court is bound to assign reasons for framing additional question of law at the time of hearing the appeal. The Hon’ble Supreme Court stipulated three conditions which is a pre-requisite for framing additional issues as contemplated in the proviso to Section 100 (5).

(i) Such question should arise in the appeal

(ii) Assign reasons for framing the additional questions

(iii) Frame question at the time of hearing the appeal.

6. The Learned Senior Counsel would also rely upon the judgment reported in 2018 (3) Scale Page 246 Surat Singh (Dead) vs. Siri Bhagwan & Others wherein the Hon’ble Supreme Court has elucidated the scheme of Section 100 in paragraph 29 of their judgment which reads as follows :

“29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section(4) of Section

100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a ca