Filing a review does not prevent subsequent appeals but does not excuse delay caused; legal remedies must be pursued diligently.

JUDGMENT :

D.Dash, J.

The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’); has challenged the judgment and decree passed by the learned 1st Additional District Judge, Rourkela in R.F.A. No.30 of 2016.

The Respondent herein as the Plaintiff had filed Civil Suit No.116 of 2008 in the Court of Civil Judge, Senior Division, Rourkela arraigning the present Appellant as the sole Defendant. The suit was decreed in part. The Appellant (Defendant) by way of mandatory injunction was directed to remove their materials as per the list furnished in the plaint from the particular site at their own cost. The Respondent (Plaintiff) being not satisfied with the said part decree passed in the suit, carried the Appeal under section 96 of the Code.

The First Appellate Court while allowing the Appeal in part, directed the Appellant (Defendant) to remove the materials, equipments, fittings and iron ore kept in the premises of Respondent (Plaintiff) within two months, failing which, to be so removed through the process of the Court and the Appellant (Defendant) has been directed to pay damage of Rs.5000/- per day till actual removal on failure to remove within two months.

2. The Appellant (Plaintiff) after the judgment and decree dated 31.08.2017 and 14.09.2017 respectively passed in the First Appeal filed the Review Application under order 47 Rule 1 of the Code for review of the said Judgment and decree before that First Appellate Court which was numbered as CMA No.03 of 2018. The Review Application stood dismissed on 18.07.2022.

The Appellant (Defendant) after being unsuccessful in the review application, has filed the present Second Appeal on 29.09.2022. For the delay of 1765 days (4 years 10 months 5 days) in filing this Second Appeal challenging the judgment and decree passed in the First Appeal, an application under section 5 of the Limitation Act has been filed seeking condonation of delay.

3. Mr. P. K. Rath, learned Senior Counsel for the Appellant and Mr. P.K. Nayak, learned counsel for the Respondent. The two legal points for determination had been formulated and those are:-

i.Whether the Appellant having filed a petition under Order 47 of the Code to review the judgment and decree passed in First Appeal under section 96 of the Code can again present an Appeal under section 100 of the Code?

ii.Whether the Appellant can by filing this Appeal under section 100 of the Code after disposal of the review petition by the First Appellate Court seek exemption of that period spent after review for condonation of delay?

4. Mr. Rath, learned Senior Counsel for the Appellant (Defendant) submitted that as provided in Order 47 of the Code what it is necessary that on the date of presentation of the said petition for review, the party seeking the review must not have filed an Appeal challenging the judgment and decree or order if so, appealable. He submitted that there is no legal bar that the party aggrieved by the judgment and decree after being unsuccessful in the review cannot file the regular Appeal. He further submitted that in the case at hand when the Appellant (Plaintiff) was pursuing his remedy as provided in law by filing review petition and thereafter has filed this Appeal, the delay in filing the Appeal thus being not intentional or deliberate but because of the pendency of the review petition, which was not within the care and control of the Appellant (Defendant), the delay for the period need be condoned.

5. Mr. Nayak, learned Counsel for the Respondent (Plaintiff) while submitting that the Appeal after disposal of the review petition is not maintainable contended that the Appellant (Defendant