Revision Petition Under S115 CPC Cannot Be Entertained Against Order Of Trial Court Rejecting Review Of Decree : Supreme Court

The Supreme Court on Tuesday (26.09.2023) held that a revision petition under Section 115 of the Code of Civil Procedure,1908 against rejection of a review application of an appealable decree by a subordinate court on merits cannot be entertained.

“..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” a division bench of Justice P S Narasimha and Justice Manoj Misra observed.

The Court noted that in the case under consideration there was an appealable decree when the revisional powers were invoked by the High Court. The revision petition was filed against rejection of the review application by the trial court where review of an appealable decree was sought. The trial court dismissed the review application on merits.

The Court observed that in the said case if the Trial Court had granted the review, the aggrieved party had the remedy of appeal under Order XLIII Rule 1 (w) read with Order XLVII Rule 7 of the CPC. If it had allowed the review and modified/altered/reversed the decree, the aggrieved party would have the right to file an appeal against such a decree. However, if the revisional court (High Court),modifies the order, an anomalous situation would arise and the right to appeal by the aggrieved party would be affected, the Apex Court observed.

“..if the revisional court does the same, as has been done by the High Court while passing the impugned order, an anomalous situation would arise. The decree passed by the trial court would stand modified by the High Court. Therefore, if the defendant(s) against whom the decree is passed were to challenge the same, they would be at a disadvantage on account of the merger”, the Supreme Court said.

If the revisional court sets aside/modifies/alters a trial court’s decree, the decree of the trial court would merge with the one passed by the revisional court. As a result, the right of the party aggrieved by the trial court’s decree to file an appeal would get affected, the Court observed.

“..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", the Supreme Court added.

“..there may be a case where a person is aggrieved by a finding of the trial court on any issue, even though the trial court’s decree may be in its favour. In that scenario, if there is an appeal by a party aggrieved by the decree, that person would have a right to take an objection against the adverse finding with the aid of the provisions of Order XLI, Rule 22 of the CPC, but in the event of there being no appeal against the decree, such a person would lose its right to take an objection, under Order XLI, Rule 22 of the CPC, against that adverse finding.” the Court added.

The Apex Court also observed that in a case where review is allowed and the decree is reversed/modified, the decree so vacated/reversed/modified is the one effective for further appeal. But if the review petition is dismissed, the aggrieved party will have to challenge the same within the time stipulated for the original decree, since there is no merger of decrees as in the previous scenario.

“Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition", the Court observed.

The Apex Court thus set aside the High Court order holding that it should not have entertained the revision of the respondent against rejection of her application for review of an appealable decree of the court below. However, it was made clear that this would not affect the right of the respondent to file an appeal against the decree of the trial court along with an application to condone the delay, if any, in filing the appeal. 

Senior Advocate A Sirajuddeen appeared for the appellant.

Case Title: Rahimal Bathu V. Ashiyal Beevi, Civil Appeal No.  of 2023 (Arising out of SLP (C) No. 8428 OF 2018

Citation : 2023 LiveLaw (SC) 829

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