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2006 DIGILAW 573 (KAR)

C. P. BHARATHI v. ANJANAPPA (DECEASED) BY L. RS.

2006-07-12

K.L.MANJUNATH

body2006
ORDER A short and an important question a raises in this review petition is: whether Order 47, Rule 1 of Code of Civil Procedure, 1908 can be invoked to review the judgment by a person who is not a party either in the suit or in the appeal. 2. One Anjanappa filed the suit for partition and separate possession of his half share in the suit schedule property in O.S. No. 332 of 1971, which was later renumbered as O.S. No. 1318 of 1980. The suit property is measuring 4 acres 14 guntas of dry land in Sy. No. 39/4 of Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk along with an existing tiled roof house. A purchaser of the property had also filed a suit in O.S. No. 177 of 1973, which was later renumbered as O.S. No. 473 of 1981 before the City Civil Court, Bangalore for the relief of declaration and for possession in respect of the property mentioned in the suit. These two suits were clubbed together and a common judgment was passed. The suit filed by the plaintiff in O.S. No. 1318 of 1980 was dismissed and the suit filed by the 4th defendant who had purchased a portion of the property in O.S. No.4 73 of 1991 was decreed. Against the judgment and decree passed in O.S. No. 1318 of 1980, the unsuccessful plaintiff filed an appeal in R.F.A. No. 606 of 1989. Against the judgment and decree passed in O.S. No. 473 of 1981, RF.A. No. 324 of 1990 was filed. The appeal filed by legal heirs of Anjanappa was allowed on 24th November, 1998 by a learned Judge of this Court and the judgment and decree of the Trial Court was set aside. A preliminary decree was passed declaring that the plaintiff-appellant is entitled for half share in the suit property. 3. The present review petitioners Smt. C.P. Bharathi and Sri Sathyanarayana, who were not parties either in the suit or in the appeal have filed this review petition under Order 47, Rule 1 of Code of Civil Procedure requesting this Court to review the order dated 24-11-1999 passed by this Court in R.F.A. No. 606 of 1989 and to give an opportunity to the petitioners to defend their case properly. Along with this review petition, an application under Section 5 of the Limitation Act, has been filed to condone the delay of 2492 days in filing the review petition. An application under Section 151 of Code of Civil Procedure is also filed seeking permission to prosecute the review petition. 4. Before considering the application filed under Section 5 of the Limitation Act, I have heard the Counsel for the parties in regard to the right of the petitioners to maintain the review petition. 5. According to Mr. S.P. Shankar, learned Senior Counsel appearing for the petitioners, considering the provisions of Order 47, Rule 1 of the Code of Civil Procedure, any aggrieved person can maintain a review petition to review the judgment passed by this Court. He further relied upon Section 114 of Code of Civil Procedure. In support of his arguments, he has also relied upon the judgments of Hon'ble Supreme Court in Shivdeo Singh and Others v State of Punjab and Others and Union Carbide Corporation v Union of India. Relying upon these judgments, Mr. Shankar contends that the petitioners being aggrieved persons, even though they were not parties either before the Trial Court or before the Appellate Court, can maintain an application for review of the judgment. Therefore, he requests this Court to set aside the judgment in order to given an opportunity to the petitioners to establish their rights, contending that the judgment passed by this Court in regular first appeal would directly affect the interest of the petitioners. 6. Per contra Mr. C.B. Srinivasan, learned Counsel appearing for the legal heirs of the 1st respondent contends that Section 114 of Code of Civil Procedure has to be read along with Order 47, Rule 1 of Code of Civil Procedure. According to him, scope of Order 47, Rule 1 of Code of Civil Procedure is very limited and can be invoked by a person; against whom a decree or order is passed. Therefore, he contends that when the judgment and decree is not passed against the review petitioners, the review petitioners cannot maintain the review petition under Order 47, Rule 1 of Code of Civil Procedure along with Section 114 of Code of Civil Procedure. To Support his arguments, he has relied upon the judgment of Supreme Today reported in Haridas Das v Smt. Usha Rani Banik and Others. To Support his arguments, he has relied upon the judgment of Supreme Today reported in Haridas Das v Smt. Usha Rani Banik and Others. Relying upon this judgment, he contends that the scope of review petition is very limited and can be filed by a person against whom a decree or order is passed under the circumstances explained in Order 47, Rule 1 of Code of Civil Procedure. Therefore, he requests this Court to dismiss the review petition. 7. At the outset, this Court made it very clear to the learned Counsel for both the parties that; this Court would consider the merits of the petition provided the review petition under Order 47, Rule 1 of Code of Civil Procedure is maintainable. Therefore, there is no necessity for this Court to go into whether the review petitioners have got a case on merits. 8. It is not in dispute that the petitioners were not parties in the original suit filed by Anjanappa and similarly, they were also not parties" in the appeal filed by legal heirs of Anjanappa. In Shivdeo Singh's case, the Hon'ble Supreme Court had held that since an order was passed against a person who was not a party to the writ petition under Article 226 of the Constitution of India, such aggrieved person either can file a separate writ petition or a review petition. Considering the scope of Article 226 of the Constitution of India, their Lordships have held that, in such circumstances, the review petition was maintainable. Their Lordships have not considered the scope of Order 47, Rule 1 of Code of Civil Procedure in a civil appeal in regard to right of a person to maintain a review petition when he is not a party to the suit or to the appeal. 9. Similarly, in Union Carbide Corporation's case, the Hon'ble Supreme Court while considering the issue under Article 142 of Constitution of India had decided the said case. But the facts involved in Union Carbide Corporation's case is not applicable to the facts and circumstances of the case on hand. The Supreme Court has never said that the review petition under Order 47, Rule 1 of Code of Civil Procedure can be maintained, even if a petitioner is not a party to the suit or appeal. 10. But the facts involved in Union Carbide Corporation's case is not applicable to the facts and circumstances of the case on hand. The Supreme Court has never said that the review petition under Order 47, Rule 1 of Code of Civil Procedure can be maintained, even if a petitioner is not a party to the suit or appeal. 10. The Hon'ble Supreme Court in the case of Haridas Das has considered the scope of review petition under Order 47, Rule 1 of Code of Civil Procedure. It has also considered the judgment of Shivdeo Singh and held that the scope of review petition is very limited. Order 47, Rule 1 of Code of Civil Procedure reads hereunder: "1. Application for review of judgment.-(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 a 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 applies for the review". From reading of Order 47, Rule 1 of Code of Civil Procedure, it is clear to the Court that review petition can be filed by a person against whom a decree or order is passed and a person who has not filed an appeal can also file an application by invoking jurisdiction under Order 47, Rule 1 of Code of Procedure. On a careful reading of Order 47, Rule 1(1) and (2) of Code of Civil Procedure, this Court is of the opinion that if a person is not a party to the suit and has not suffered a decree either by the Trial Court or by the Appellate Court cannot maintain the petition. In the circumstances, review petition filed by the petitioners is not maintainable, as their case does not fall within the provisions of Order 47, Rule 1 of Code of Civil Procedure. 11. In the result, the review petition is dismissed. If the petitioners are aggrieved by the judgment and decree of the Trial Court or this Court, they have to work out their remedy by filing a suit or in any other proceedings.