Important point
Having filed a review application and having succeeded therein in part, it was not open to prefer an appeal against the entire decree whereby the suit in its entirety was dismissed. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review.

Headnote:Civil Procedure Code, 1908—Section 96, Order XII Rule 6, Order XXI Rules 95, 97 to 101 rw/s Section 47; Order XLVII Rules 1 and 4—Appeal—Father of respondents 1 and 2 was inducted into tenancy on 1.4.1959 for a tenure of 15 years—On expiry of period of lease, appellant, owner of premises filed Title Suit for eviction of respondents—During pendency of suit, parties entered into settlement—Three agreements for sale were executed whereby appellant agreed to sell suit premises to respondents—Allegedly on ground that respondents failed to send the draft deeds of sale to appellant within the stipulated time, agreements were cancelled by appellant on 1.6.1990—Respondents filed suit against appellant for specific performance of three agreements—Respondents filed an application for injunction restraining appellant from alienating the suit premises—Appellant filed written objection specifying grounds of cancellation—No reply was filed by respondents—Suit decreed in title suit filed by appellant—Appeal—Supreme Court while dismissing the application for grant of special leave recorded an undertaking given on behalf of appellant not to execute the decree passed in Title suit till the decision in the suit for specific performance—Suit for specific performance was dismissed in terms of Order XII Rule 6 purported to be on admission on part of respondents regarding cancellation of agreements—Review petitions filed by respondents allowed—First Appeal filed by appellant—Whether maintainable—(Yes)—Whether High Court was justified in entertaining appeal filed by respondents against the original judgment and decree passed in Title suit for specific performance of contract—(No).
       Held : 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. (Para 17)
       An appeal preferred against the said order dated 15.7.2002 by the Appellant herein was maintainable in terms of Order 47 Rule 7 CPC. However, no cross objection was maintainable at the instance of the Respondents. (Para 23)
       Before the High Court, the cross objection filed by the Respondents was not pressed. The appeal preferred by the Appellant herein was allowed. It was, therefore, stricto sensu not a case where a prayer was made for withdrawing the application for review so as to render the decree wide open to challenge in an appeal under Section 96 CPC. A Respondent may concede that the appeal filed by the Appellant may be allowed or his cross-objections may be dismissed but if he intends to withdraw his suit or review application and that too at the appellate stage, he must make out proper grounds therefor so as to enable the court to apply its own mind thereupon Order 23 Rule 1 CPC confers a discretionary jurisdiction on the court. Although Order 23 Rule 1 ipso facto is not applicable to a review petition, the principles analogous thereto would be, in terms whereof an order directing withdrawal of such a suit or abandonment of part of claim may be allowed only when the court is satisfied that one or the other conditions specified in sub-rule (3) of Rule 1 are satisfied. In terms of the sub-rule (4) thereof, the plaintiff shall be liable for such cost as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (Para 25)
       The doctrine of eclipse has no application in a case of this nature. An appeal preferred in terms of Section 96 CPC must conform to the requirements contained in Order 41 thereof. An appeal at the time of its filing would either be maintainable or would not be. The High Court, with respect, was not correct in holding that such an appeal could be filed in anticipation. If such a procedure is contemplated in the law; the Respondents herein might not have filed the substantive appeal or would have prayed for withdrawal of the review application before the trial court itself. Having filed a review application on legal advice and having succeeded therein in part, it was not open to it to prefer an appeal against the entire decree dated 20.12.2001 whereby the suit in its entirety was dismissed. The Respondents could have only preferred appeal only from that part of the decree in respect whereof review was not granted. In a suit for specific performance of contract, a prayer in the alternative is ordinarily made to the effect that in the event the court declines to grant a decree for specific performance of contract, it may direct refund of the earnest money with interest. The right of review is a statutory right. Such right can be invoked if the conditions therefor are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review. (Paras 30 and 31)
       We are, therefore, of the opinion that the High Court was not correct in holding that the First Appeal filed by the Respondents was maintainable. This order may cause injustice to the Respondents but it is their own creation. (Para 34)

Judgement Key Points

Key Points: - The Court held that the High Court was not justified in entertaining the Respondents' First Appeal against the original decree, thereby rendering the appeal inexistent. (!) (!) - The Court found that the review petition filed by the Respondents was allowed in part, which set aside the decree dated 20.12.2001; the decree consequently ceased to operate. (!) (!) (!) (!) - The Court clarified that an appeal made while a review is pending is not maintainable, and that a decree modified by a review cannot be revived by a later appeal. (!) (!) - The Court ruled that the appellate court must exercise discretion under the applicable statutory rule regarding withdrawal of a suit or review, and that the Respondents had not presented proper grounds for such withdrawal. (!) (!) - The Court confirmed that the undertaking given by the Appellant to refrain from executing the decree in the title suit remains in force until the suit for specific performance is decided, and it was not extended when that suit was restored. (!) (!) (!)

What is the proper standard for determining the maintainability of an appeal against a decree that has been set aside by a review petition?

What is the effect of granting a review on the underlying decree and on subsequent appeals?

What jurisdiction does the appellate court have to permit withdrawal of a suit or a review application under the statutory provisions?

Judgment

S.B. Sinha, J.—Leave granted.

2. Both these appeals being inter-related were taken up for hearing together and are being disposed of by this common judgment.

Background Fact :

3. The Appellant is the owner of a premise situate at 77/1, Hazra Road, in the town of Kolkata. The father of the Respondent Nos. 1 and 2, Manick Chandra Das, (since deceased) was inducted in the said tenancy on 1.4.1959 for a tenure of 15 years. On the expiry of the period of lease by efflux of time, the Appellant herein filed Title Suit No. 105 of 1975 in the Court of 3rd Munsif, Alipore, for his eviction. The original tenant died during the pendency of the suit, whereupon the Respondent Nos. 1 and 2 and their mother were substituted in his place. The said suit on transfer was renumbered as Title Suit No. 412 of 1977. During pendency of the said suit, the parties entered into settlement pursuant whereto three purported agreements for sale were executed whereby the Appellant agreed to sell the suit premises to the Respondent Nos. 1 & 2 and their mother. The Appellant herein also filed an application for grant of income tax clearance certificate in terms of Section 280-A of the Income Tax Act, 1961. Allegedly, on the ground that the Respondent Nos. 1 and 2 and their mother failed to send the draft deeds of sale to the Appellant within the stipulated time despite notices served on them in that behalf, the said agreements were cancelled by the Appellant on 1.6.1990. The mother of Respondent Nos. 1 and 2 died.

4. On or about 31.10.1990, the Respondent Nos. 1 and 2 filed a suit before the 9th Assistant District Judge, Alipore, against the Appellant for specific performance of the aforementioned three agreements, which was marked as Title Suit No. 49 of 1990. In the said suit, the Respondent Nos. 1 and 2 herein filed an application for injunction restraining the Appellant herein from alienating the suit premises. The Appellant filed her written objection specifying the grounds of cancellation thereof. No reply thereto was filed by the Respondent Nos. 1 and 2. They filed and application in the court of 1st Munsif in the said Title Suit No. 412 of 1977 for marking the Appellant’s aforementioned written objection as exhibit to prove cancellation of agreements so as to enable them to contend that the suit premises had vested in the State of West Bengal in terms of the provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981. According to the Appellant herein such a stand was taken by the Respondents as existence of the said agreements negated their said defence. The said written objection was marked as Ex.-R in the said suit.

5. It is not in dispute that the said suit was decreed and the matter ultimately came up before this Court in Civil Appeal No. 2249 of 1999. By an order dated 18.10.2000, this Court while dismissing the application for grant of special leave recorded an undertaking given on behalf of the Appellant herein not to execute the decree passed in Title Suit No. 412 of 1977 till the decision of Title Suit No. 49 of 1990. Meanwhile, the Respondent Nos. 3 and 4 herein, who are wives of Respondent Nos. 1 and 2 respectively, were permitted to be impleaded as parties in the suit on the premise that they were nominees in respect of half of their share in the agreement.

6. On or about 18.11.2000, an application was filed by the Appellant herein before the 9th Senior Civil Judge, Alipore, purported to be in terms of Order XII, Rule 6 of the Code of Civil Procedure (for short, CPC) for dismissing the said suit for specific performance of contract on the premise that by adopting the contention of the Appellant herein that the said agreements for sale stood cancelled, they have admitted the truth of all her assertions including the one that such cancellations of agreements were valid. The said suit for specific performance of contract was dismissed by the 9th Senior Civil Judge, Alipore, in terms of Order XII Rule 6 of CPC purpor

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2005 Supreme(SC) 398

What is the proper standard for determining the maintainability of an appeal against a decree that has been set aside by a review petition?

What is the effect of granting a review on the underlying decree and on subsequent appeals?

What jurisdiction does the appellate court have to permit withdrawal of a suit or a review application under the statutory provisions?

Cases Referred (3)