Advocates:
['SOUMYA MISHRA', '', 'A AGARWAL', 'S PRIYADARSINI', 'O PANDA', 'G N PARIDA', 'M/S RAMAKANT MOHANTY', 'M/S DWARIKA PRASAD MOHANTY', 'T K MOHANTY', 'P K SWAIN', 'M PAL', 'R MOHANTY']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

RVWPET No.44 of 2022

Srikanta Charan Mohanty and others

..&

Petitioners

Mr. Soumya Mishra, Advocate

-versus-

Saraswati Rout and others

&.

Opp. Parties

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

08.08.2022

9.

1.

This matter is taken up through Hybrid mode.

2.

Petitioners in this petition seek for review of judgment

and order dated 5^th March, 2021 passed in SA No.79 of 1996.

2.1

Before discussing the submission made by learned

counsel for the parties, it would be profitable to record that

assailing the judgment and order dated 5^th March, 2021 passed

in SA No.79 of 1996, the review Petitioners had moved the

Hon9ble Supreme Court in Special Leave Petition (Civil)

No.499 of 2022, which was disposed of on 14^th the February,

2022 (Annexure-4) with the following order:-

<From a perusal of the impugned judgment, we

notice that before the High Court, submissions were

made only on one substantial question of law which

was considered. Learned senior counsel for the

petitioners would, however, point out that there were

other points which were raised and which were not

considered. If that complaint is true, it is for the

petitioners to move the High Court.

With prejudice to such a right, the special leave

petition will stand disposed of.=

Accordingly, the present review petition has been filed.

// 2 //

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3.

Mr. Mishra, learned counsel for the review Petitioners

submits that the Second Appeal filed by them was admitted on

the following substantial questions of law:-

<(i)

Whether the lower Appellate Court committed

gross error in not holding that the suit was barred by

limitation under Article 59 of the Limitation Act and

whether the decision is liable to be set aside on that

score?

(ii)

Whether the lower Appellate Court committed

gross illegality in decreeing the plaintiff9s suit in the

absence of specific pleading with regard to fraud? And,

(iii)

Whether the suit should not have been

entertained because of non-payment of ad valorem

court-fee for the transaction under the sale-deed?=

But the appeal was decided only on substantial question of

law No. (i), as learned counsel for the Appellants confined his

argument to the said substantial question only.

3.1

It is his submission that the substantial question of law

No.(i) relates to issue of limitation in filing the suit. This

Court, taking into consideration the submission made by

learned counsel for the parties and discussing the materials

available on record remanded the matter back to learned

District Judge, Balasore for adjudication of the question of

limitation afresh. This Court also confirmed the rest of the

findings recorded by learned First Appellate Court.

3.2

It is his submission that if the question of limitation is

decided in favour of the Appellants then findings of other

issues would require reconsideration in view of Order XLI

Rule 25 CPC. Thus, the findings of this Court confirming the

findings on other issues rendered by learned First Appellate

Authority is not sustainable and in that regard the Court has

// 3 //

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committed an error of law apparent on the face of record.

Hence, it requires reconsideration.

3.3

It is further submitted that although this review petition

is filed pursuant to the liberty granted by the Hon9ble

Supreme Court, but it cannot be confined to the submission

made before the Hon9ble Supreme Court. The review

Petitioners can also raise other issues if available to them to

raise in the review petition. The legal right of the Petitioners

to file the review petition cannot be confined to the liberty

granted by Hon9ble Supreme Court.

3.4

He further submits that, di