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Velegalapudi Savitramma Vs. Kambhampati Satyanarayanamurthy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1022 of 1956
Judge
Reported inAIR1960AP81
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1(2)
AppellantVelegalapudi Savitramma
RespondentKambhampati Satyanarayanamurthy
Appellant AdvocateN. Bapiraju, Adv.
Respondent AdvocateV. Pardhasaradhi, Adv.
DispositionPetition dismissed
Excerpt:
.....in order 47 rule 1 (2) party who has not filed appeal can file review petition - fact that other party's appeal is pending or disposed by appellate court not material - held, court can consider review petition filed by person who has not appealed against decree. - - if the two latter conditions are satisfied, the pendency of an appeal preferred by one of the parties does not disable him from invoking sub-rule (2). these are the only contingencies in which the remedy provided by that sub-rule becomes unavailable. 11. we will now turn to ilr 26 mad 91 (fb) on which strong reliance was placed by sri bapi raju. that rule clearly says that 'the court may at once rehear the case or make such order in regard to the rehearing as it thinks fit. as in a case like this where nothing further..........the learned judge proceeded to say ;'it is of course open to the decree-holder to execute the decree appealed against while the appeal is pending and it is equally open to the judgment-debtor to satisfy the decree by payment or otherwise as the case may be, notwithstanding that an appeal is pending either against the whole or a portion of the decree. all that clause (2) of the third column of article 179 provides is that if a question of limitation should arise as to the execution of a decree which has been appealed against limitation is to be computed not from the date of the original decree but from that of the appellate decree.'sri bapi raju called in aid the following passage in the judgment of bhashyam ayyangar, j., occurring at page 96 of the report:'the mere fact that a.....
Judgment:

Chandra Reddy, C. J.

1. This Civil Revision Petition raises a question bearing on Order 47 Rule 1 of the Code of Civil Procedure, the question being whether the trial Court could review its judgment in regard to a part of a decree which was not appealed from.

2. If is necessary to set out the facts on which the decision in this Civil Revision Petition is to be based. The respondent initialed a suit for possession of 2/5ths share in items 1 and 2 of B schedule annexed to the plaint as purchaser in an auction sale held by the Co-operative Credit Society of Avidi in execution of two awards obtained separately against defendants 1 and 2, who owned each a 1/5th sharp therein. The suit was contested on the defences that what was purchased by the respondent was only the vested remainder in the 2/5ths share in those items, the 6th defendant having a life-interest therein, and that the purchase of the 2nd defendant's share was void and did not pass any title to the plaintiff in that at the time of the transaction the 2nd defendant was an un-discharged insolvent.

The trial Court overruled the objection relating to the share of the 1st defendant in the view that the sale certificate conveyed absolute title to the purchaser in the 1st defendant's share but gave effect to it in so far as it concerned the 2nd defendant's share. The learned Judge relied on Ex. D-4, an extract of the Civil Register in I. P. No. 63 of 1933 on the file of the Subordinate Judge's Court, Kakinada, which showed that the annulment was made long after the sale of the 2nd defendant's share, which took place on the 22nd of August 1944, in coming to the conclusion that the transaction was an ineffective one.

The 6fh defendant who was one of the parties aggrieved by the judgment of the trial Court filed an appeal in regard to the 1st defendant's share in the Subordinate Judge's Court, Amalapuram, That appeal was allowed and the suit was dismissed even in regard to the 1st defendant's share. We are not concerned with the reasons adduced by the Subordinate Judge for allowing the appeal as nothing turns upon it in this enquiry. The plaintiff presented a Second Appeal on the 5th of February 1948 in the High Court of Madras against the decree of the Subordinate Judge. The Second Appeal was allowed and the trial Court's decree was restored on the 22nd of October 1951.

3. Meanwhile the plaintiff, who could obtain a certified copy of the order annulling the adjudication of the 2nd defendant, applied to [he trial Court for a review of its judgment dealing with the 2nd defendant's share. That document, Ex. A-3 established that the adjudication of the 2nd defendant was annulled long before the sale, viz.. on the 6th of April 1943. The review petition was accepted on the strength of Ex. A-3, It is against the order allowing the review petition, that the present Revision Petition is filed.

4. In support of the petition it is urged by Sri Bapi Raju that when once an appeal has been preferred and a judgment rendered by the appellate Court, an application for review could be granted. only by the appellate Court and not by the trial Court. The learned counsel elaborates this by arguing that the judgment and decree of the trial Court are merged in those of the appellate Court, whether the judgment of the appellate Court relates to the whole or a part of the decree of the trial Court or not and the jurisdiction for reviewing any part of the decree vests only in the appellate Court and not in the trial Court, The learned counsel seeks to substantiate this proposition with reference to the judgment of a Full Bench of the Madras High Court in Krishnama Chariar v. Mangammal. ILR 26 Mad 91 (FB).

5. Before we consider 'the effect of ILR 20 Mad 91 (FB) on the present enquiry, it is useful to read Order 47, Rule I of the Code of Civil Procedure.

'(1) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an 'appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when being respondent, he can present to the Appellate Court the case on which he applied for the review.''

It is seen that Sub-rule (1) confers a light upon a litigant to present an application for review. That is a general right available to a party under certain circumstances. Under that Sub-rule it is only in a case where an appeal is not filed, that an application for review is maintainable'. Sub-rule (2) applies to a case where a party has not himself appealed against any portion of the judgment of the trial Court. Such a party is not precluded from seeking the remedy provided under Sub-rule (2) by the pendency of an appeal by one of the parties, except where the ground of such appeal is common to the appeal and the review petition, or when being the respondent in that appeal he could present to the appellate Court the case on which he seeks review.

If the two latter conditions are satisfied, the pendency of an appeal preferred by one of the parties does not disable him from invoking Sub-rule (2). These are the only contingencies in which the remedy provided by that sub-rule becomes unavailable. There is no further condition that that application should he accepted before the appeal preferred by the co-party is disposed of as contended by the counsel for the respondents. This rule does not set any time limit for the disposal of the application under Sub-rule (2).

6. The argument that is pressed upon us by Sri Bapi Raju is that while it is open to a party, who has not preferred an appeal against any part of the judgment to seek review, that application would become ineffectual the moment the appellate Court passes its judgment either reversing or confirming a part of the judgment or decree of the trial Court under appeal. To give effect to this argument is to read something which is not in Sub-rule (2) and to incorporate a time limit into the sub-rule regarding the disposal of review petitions. Neither the Limitation Act nor the Code of Civil Procedure has prescribed any time limit for the disposal of causes. In our opinion the language of Sub-rule (2) docs not warrant the construction that is sought to be placed on it and there is nothing in that rule that could induce us to put such unnatural construction upon Sub-rule (2).

7. In our considered view, a party who has not availed himself of the right of appeal against a portion of the judgment could maintain an application for review by force of Sub-rule (2) of Order 47, Rule 1.

8. This view of ours is reinforced by a judgment of the Calcutta High Court in Chandra Kartta v. Lakshman Chandra, AIR 1917 Cal 417. The learned Judges ruled that a defendant who had not himself appealed might apply for a review of judgment notwithstanding the pendency of an appeal by a co-defendant except in the two circumtances which have already been noticed. It was observed by their Lordships in the course of the judgment:

'It is plain that the expression 'where the ground at such appeal is common to the applicant and the appellant' refers to a case where the appeal and the review are based on the same grounds, and does not contemplate a comparison between the actual appeal by the defendant and a possible hypothetical appeal by the applicant for review.'

9. We express our respectful accord with the doctrine of AIR 1917 Cal 417. The judgment of J the Patna High Court in Rampal Thakur v. Mungal Chowdhury, : AIR1953Pat208 is in consonance with this view.

10. Indisputably in the case on hand thegrounds for the appeal and review are distinct. Infact, the subject-matters of the two are entirelydifferent. While A. Section No. 36 of 1947 on the fileof the Subordinate Judge's Court, Amalapuram, and8. A. No. 723 of 1948 on the file of the High Courtcovered the 1/3th share of the 1st defendant thereview petition related to the 1/5th share of the2nd defendant. Therefore, the plaintiff could nothave preferred cross-objections in relation to the2nd defendant's 1/5th share in an appeal whichinvolved the 1st defendant's 1/5th share.

11. We will now turn to ILR 26 Mad 91 (FB) on which strong reliance was placed by Sri Bapi Raju. The main question that presented itseif in that cast; was whether under Article 179 of Schedule II to the Limitation Act. 'when a portion of a decree has been appealed against and a portion has not, the period of limitation for an application to execute the portion not appealed against runs from the date of the original decree' or from the date of the decree on appeal. The answer of the Full Bench was that the period of limitation ran from the date of the decree on appeal.

We are unable to see what assistance thatjudgment could render to the petitioner. That turned on the language of Article 179 of Schedule IIto the Limitation Act. It is Clause (2) of the thirdcolumn of that Article which contains the words'where there has been an appeal, the date of thefinal decree or order of the Appellate Court or thewithdrawal of the appeal....' that fell to be considered by their Lordships. The problem that posed itself before them was whether the words 'wherethere has been an appeal' would convey the ideathat the appeal for the purpose of that Articleshould be by all parties and against every part ofthe decree or judgment.

The learned Judges thought that the words 'where there has been an appeal,' should be given their natural meaning and if so done, the condition of the third column was fulfilled even if a part of the decree had been appealed by one or more parties and there was no warrant for reading into that clause such words as 'and all the parties to the suit are parties to the appeal and the subject-matter of the appeal includes the whole subject-matter of the suit.' The words 'where there has been an appeal' in their natural connotation could only mean an appeal against the judgment or decree.

The learned judges were not prepared to put restricted meaning on them as was sought to be assigned to it by the judgment-debtors. Bhashyam Ayyangar, J., one of the members of the Full Bench who dealt with this matter exhaustively, observed that by placing the interpretation, which he did, no hardship could be caused to either party nor could there be any anomaly in that. The learned judge proceeded to say ;

'It is of course open to the decree-holder to execute the decree appealed against while the appeal is pending and it is equally open to the Judgment-debtor to satisfy the decree by payment or otherwise as the case may be, notwithstanding that an appeal is pending either against the whole or a portion of the decree. All that Clause (2) of the third column of article 179 provides is that if a question of limitation should arise as to the execution of a decree which has been appealed against limitation is to be computed not from the date of the original decree but from that of the appellate decree.'

Sri Bapi Raju called in aid the following passage in the judgment of Bhashyam Ayyangar, J., occurring at page 96 of the Report:

'The mere fact that a matter is litigated both in the Court of First Instance and again, though only in part, in the Court of Appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of Appeal, There cannot be two final decrees in such a suit, one by the Court of First Instance and the other by the Court of Appeal.'

On the basis of these remarks it is argued by Sri Bapi Raju that there could be only one decree, and when there is an appeal, it is the decree of the Appellate Court that should be regarded as the decree and that the decree of the trial Court cannot be split up for purposes of review. The passage quoted above does not lend any support to the argument advanced on behalf of the petitioner.

12. Thus, it is manifest that the Full Benchdecision is not in point and we cannot derive anyassistance from ILR 26 Mad 91 (FB) in the present enquiry. The answer to the question raisedhere has to be found in Sub-rule 2 of Rule 1 of OrderXLVII and the ruling based on the wording ofClause 2 of column 3 of the present Art, 182 hasno analogy here. No case has been brought to ournotice which has taken a view contrary to ours.On principle and on authority, we have no hesitation in reaching the conclusion that a party whohas not filed an appeal could file a review petitionnotwithstanding the pendency of an appeal preferred by one of the parties and could pursue it thoughthe appeal filed by the other party has been disposed of and the judgment of the appellate Courthas become final so far as it bears on that part ofthe decree under appeal. The present case fallswithin the purview of Sub-rule (2) and the objectionof the 6th defendant in that behalf hag to be negatived.

13. It was faintly argued that the District Munsif should not have straightway given a decree for the 1/5 share of the 2nd defendant and he should have posted the suit for trial to a different date after allowing the review petition. The mainstay of this argument is Order 47, Rule 8, C.P.C., but that is not in any way helpful to him. That rule clearly says that 'the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit.' Manifestly two courses are open to the Court which grants a review, either to rehear the case at once or to make such orders in regard to the re-hearing as the circumstances require.

As in a case like this where nothing further is to be done, there is no point in the Court adjourning it to another date. The only result of allowing the review petition is to decree the suit in so far as the 2nd defendant's share is concerned. There is, therefore, no defect in the procedure followed by the trial Court in that regard. This contention in also unsubstantial and has to be rejected.

14. In the result, the Civil Revision Petitionis dismissed with costs.


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