Where An Appealable Decree Is Passed In Suit, No Revision Should Be Entertained U/s. 115 CPC Against Order Rejecting Review On Merits: SC
|The Supreme Court has held that where an appealable decree is passed in a suit, no revision should be entertained under Section 115 of the Civil Procedure Code (CPC) against an order rejecting a review on merits.
The Court was deciding a civil appeal against the order of the Madras High Court, Madurai Bench whereby the revision of the respondent (plaintiff) was allowed and the order passed by the Court of First Additional Sub Court was set aside.
The two-Judge Bench of Justice P.S. Narasimha and Justice Manoj Misra said, “… we are of the considered view that where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed.”
The Bench said that the revision of the respondent against rejection of her application for review of the appealable decree ought not to have been entertained by the High Court.
Senior Advocate A. Sirajudeen appeared on behalf of the appellants while Advocate V. Prabhakar appeared on behalf of the respondent.
Brief Facts -
The respondent instituted an Original Suit for declaring her as the exclusive owner of the property and the possession of the said property was sought. In the alternative, it was prayed that, if the court concludes that she was not the exclusive owner of the property, her share therein be declared one-sixth and the same be partitioned accordingly. The plaint case was that the suit property was of plaintiff’s grandmother which the plaintiff purchased from her vide sale-deed. The defendant (appellant) was the daughter-in-law whereas other defendants were her children. Taking advantage, the husband of the defendant got a gift-deed executed in his favour from plaintiff’s grandmother.
The aforesaid gift-deed was obtained by exercising undue influence and coercion and was never acted upon and was therefore a nullity. In the alternative, it was pleaded that, if the gift-deed was accepted, since the husband of the defendant died, the plaintiff’s grandmother had one-sixth share in the property which would come to the plaintiff under the sale-deed. As the Trial Court found the gift-deed invalid and sale-deed valid, the plaintiff filed a review application but the same was rejected. Thereafter, the High Court under Section 115 of CPC entertained the revision and allowed it.
The Supreme Court in the above context of the case noted, “… where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier.”
The Court said that if the revisional court sets aside or modifies or alters a trial court’s decree, the decree of the trial court would merge in the one passed by the revisional court and in consequence, the right of the party aggrieved by the trial court’s decree to file an appeal would get affected.
“… if the revisional court’s order is allowed to stand, owing to modification of the decree by the revisional court, to which in normal course an appeal would lie, the right of an appeal to the aggrieved party would get seriously prejudiced”, held the Court.
Accordingly, the Apex Court allowed the appeal and set aside the order of the High Court.
Cause Title- Rahimal Bathu & Others v. Ashiyal Beevi (Neutral Citation: 2023INSC861)