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2008 DIGILAW 588 (CAL)

Rameshwar Sarkar v. Collector Nadia

2008-06-13

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHATTACHARYA, J. AND BANERJEE, J. (1) THIS is an application under Section 151 of the Code of Civil procedure for reconsideration of the judgment and decree dated 26th day of February, 2003 passed by a Division Bench of this Court by which the said Division Bench dismissed a first appeal being F. A. No. 296 of 2002 by affirming the judgment and decree passed by the learned Trial Judge. (2) IT appears from record that a money suit filed by the appellant was dismissed by the learned Trial Judge on the ground that such suit was barred by principle of res judicata. (3) BEING dissatisfied, the applicant before us preferred the aforesaid first appeal being F. A. No. 296 of 2002 which, ultimately, came up for hearing before a Division Bench of this Court and the said Division Bench by the judgment and decree dated 26th February, 2003 dismissed the appeal by affirming the judgment and decree passed by the learned Trial judge and reaffirming that the suit filed by the appellant was barred by the principle of res judicata. (4) IT appears from record that being dissatisfied, the appellant moved the Apex Court of India, but the Special Leave Application (Civil) No. 20550 of 2003 was dismissed on 19th January, 2004. (5) SUBSEQUENTLY, on 17th March, 2004 the present application under section 151 of the Code of Civil Procedure has been filed for reconsideration of the judgment and decree passed earlier by this Court. (6) AFTER hearing the learned Counsel for the parties, we are of the view that this application under Section 151 of the Code of Civil Procedure is not maintainable. (7) THE moment the previous judgment and decree was passed, the appellant had twofold remedies; either to file an application for review, if the illegality or irregularity came within the purview of the Order 47 Rule 1 of the Code or to move the Apex Court for special leave. The appellant had chosen the second forum but was unsuccessful. (8) SUBSEQUENTLY, the appellant has come up with an application under section 151 of the Code of Civil Procedure for reconsideration of the original order. (9) WHEN there is a specific remedy available under the Code of civil Procedure, it is settled law that an application under Section 151 of the Code of Civil Procedure is not maintainable. (8) SUBSEQUENTLY, the appellant has come up with an application under section 151 of the Code of Civil Procedure for reconsideration of the original order. (9) WHEN there is a specific remedy available under the Code of civil Procedure, it is settled law that an application under Section 151 of the Code of Civil Procedure is not maintainable. (10) EVEN if we treat this application as one under Order 47 Rule 1 of the Code, the same would be patently barred by limitation and therefore, the same is not maintainable. (11) WE are even unable to review the judgment and decree passed by the Division Bench of this Court dated 26th February, 2003 as the same does not come within the purview of Order 47 Rule 1 of the code. Sitting in co-ordinate jurisdiction we cannot re-appreciate the entire materials-on-record and thus, there is even no scope of reviewing the earlier order. (12) THIS application under Section 151 of the Code is, therefore, liable to be dismissed on all the aforesaid grounds. The application being C. A. N. No. 2369 of 2004 is, thus, dismissed. No order as to costs.