This appeal against a partition suit decree was disposed of without deciding merits because a review petition challenging the entire decree had already been preferred, requiring the appeal's revival pending that review.
Appeal disposed of without expression of opinion on merits; liberty reserved for revival after disposal of review petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:44418 RFA No. 1978 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1978 OF 2023 (PAR/POS)
BETWEEN:
SMT. JAYALAKSHMI R., W/O LATE N. RADHAKRISHNA REDDY, AGED ABOUT 81 YEARS, R/AT NO. 55/2, 13TH CROSS, 4TH MAIN, MALLESWARAM, BANGALORE – 560 003.
…APPELLANT
(BY SRI. MITHUN GERAHALLI. A., ADVOCATE) AND:
Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA
R/AT 30-B, SANCHAR LOK APARTMENT, 108, IP EXTENSION, NEW DELHI
R/AT 543, 1ST MAIN, 8TH BLOCK, KORAMANGALA, BENGALURU - 560 034.
…RESPONDENTS
(BY SRI. G.L. VISHWANATH, SR. COUNSEL FOR SMT. MANASA M.B., ADVOCATE FOR R6; SRI. A. SAMPATH, ADVOCATE FOR R49)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.08.02023 PASSED IN OS NO.26275/2007 ON THE FILE OF XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY., PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment and decree dated 28.08.2023 passed in O.S.No.26275/2007 on the file of 12th Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the appellant – plaintiff for partition and separate possession of her alleged share in the suit schedule properties insofar as Item Nos. 1 and 5 of the suit schedule properties were concerned, was dismissed by the trial court.
properties comprised of 5 items of immovable properties and the suit having been contested by the respondents – defendants, the trial court proceeded to pass the impugned judgment and decree, decreeing the suit only in respect of items 2, 3 and 4 and dismissed the suit in respect of items 1 and 5 of the suit schedule properties, aggrieved by which, appellant preferred the present appeal before this Court on 05.10.2023.
NC: 2023:KHC:44418 RFA No. 1978 of 2023
In support of his contentions, learned Senior counsel for the 3rd defendant – 6th respondent placed reliance upon the following
judgments:-
(i) Kabari Pvt. Ltd., vs. Shivnath Shroff and others – (1996) 1 SCC 690;
(ii) Rekha Mukherjee v. Ashish Kumar Das and others – AIR 2005 SC 1944;
(iii) Tungabhadra Industries Ltd., vs. Government of A.P. – (1964) 5 SCR 174;
(iv) Kunhayammed vs. State of Kerala – (2000) 6 SCC 359.
(v) Khoday’s Distilleries Ltd., Vs. Sri.Mahadeshwara Sakkare Kharkhane Ltd., Kollegal – (2019) 4 SCC 376.
there is no bar for the appellant to independently prosecute the present appeal notwithstanding filing of R.P.No.33/2023 earlier by the 3rd defendant-6th respondent especially when the said review petition had not been filed by the appellant herein and in the light of the provisions contained in Order 47 Rule 1(2) CPC. It was therefore contended that the submission made on behalf of 3rd defendant – 6th defendant was liable to be rejected.
NC: 2023:KHC:44418 RFA No. 1978 of 2023
“ 31. The doctrine of eclipse has no application in a case of this nature. An appeal preferred in terms of Section 96 CPC must conform to the requirements contained in Order 41 thereof. An appeal at the time of its filing would either be maintainable or would not be. The High Court, with respect, was not correct in holding that such an appeal could be filed in anticipation. If such a procedure is contemplated in the law the respondents herein might not have filed the substantive appeal or would have prayed for withdrawal of the review application before the trial court itself. Having filed a review application on legal advice and having succeeded
NC: 2023:KHC:44418 RFA No. 1978 of 2023
therein in part, it was not open to it to prefer an appeal against the entire decree dated 20-12-2001 whereby the suit in its entirety was dismissed. The respondents could have only preferred appeal only from that part of the decree in respect whereof review was not granted. In a suit for specific performance of contract, a prayer in the alternative is ordinarily made to the effect that in the event the court declines to grant a decree for specific performance of contract, it may direct refund of the earnest money with interest.
32. The right of review is a statutory right. Such right can be invoked if the conditions therefor are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review.
33. In Garikapatti Veeraya [1957 SCR 488 : AIR 1957 SC 540] this Court held: (SCR p. 547)
“Considering the question on principle, an appeal is a proceeding by which the correctness of the decision of an inferior court is challenged before a superior court. A right of appeal therefore can arise by its very nature only when a decision by which a litigant is aggrieved is given, and it sounds paradoxical to say that it arises even before judgment in the case is pronounced.”
34. In Gour Krishna Sarkar (supra) Asutosh Mookerjee, J. speaking for a Division Bench opined that the court is competent to determine whether when a review is granted, the case should be reopened in part or
in its entirety, and that the view cannot be supported on principle that whenever an application for review is granted, the entire case must of necessity be reopened and re-considered. It was observed that when a review is made, the original decree ceases to exist as a result of the decision of the judge to grant the application for review.
35. We are, therefore, of the opinion that the High Court was not correct in holding that the first appeal filed by the respondents was maintainable. This order may cause injustice to the respondents but it is their own creation. This Court despite sympathy, as was in the case of Sushil Kumar Sen (supra) cannot hold in their favour ignoring the binding precedents.”
Khoday’s case supra, the Apex Court reiterated that a review petition / application is maintainable only if the same is preferred prior to an appeal being filed against an impugned order / judgment / decree and the review court is competent to dispose of the application on merits notwithstanding the pendency of an appeal filed subsequently, subject to the condition that if the appeal itself is disposed of before the review petition is taken up for consideration, the review court would not have jurisdiction to decide the review petition and in the event the review petition is disposed of during
the pendency of the appeal, the judgment / decree / order appealed against would cease exist and the appeal would be rendered incompetent. It follows therefrom that both an appeal and a review petition filed against the very same judgment / decree / order are interlinked / intertwined with one another and any order to be passed in either of the said proceedings would directly and substantially have a bearing and impact the other proceedings. Further, it would not be just and expedient to permit to parallel / dual / simultaneous proceedings to be prosecuted or continued against the very same judgment / decree / order since the same might result in conflicting orders / decisions by two different courts where the said proceedings are pending.
and substantially impact the other proceeding; however, since the review petition was filed on 16.09.2023 prior to the present appeal being preferred on 05.10.2023, it would be just, proper, expedient and desirable to dispose of the present appeal without expressing any opinion on the merits / demerits of the rival contentions and by reserving liberty in favour of the appellant to seek revival of the present appeal after disposal of R.P.No.33/2023 and also take recourse to such remedies as available in law.
prosecute the present appeal is concerned, a careful perusal of the said provision is sufficient to indicate that the same enables filing and prosecution of a review petition and not an appeal and consequently, no reliance can be placed upon the said provision by the appellant whose contention in this regard cannot be accepted.
and since R.P.No.33/2023 is yet pending adjudication, the present appeal deserves to be disposed of in the above terms.
ORDER
(i) Appeal is hereby disposed of for the present without expressing any opinion on the merits / demerits of the rival contentions.
(ii) Liberty is reserved in favour of the appellant to seek revival of the present appeal after disposal of Review Petition No.33/2023 pending before the trial court.
(iii) Liberty is also reserved in favour of the appellant to take
recourse to such remedies as available in law.
Sd/JUDGE
Srl.
3 issues framed by the court
Whether an appeal filed under Section 96 CPC is maintainable when a review petition challenging the same decree has already been filed by a different party covering the same subject matter.
Impact of Order 41 and the doctrine of eclipse on concurrent pendency of an appeal and a review petition against the same decree.
Whether reservations of prayer in a review petition by one party bar a subsequent appeal instituted by another party in the same suit for partition.
Colour shows how this judgement treated each authority
Kabari Pvt. Ltd., vs. Shivnath Shroff and othersReferred¶89
(1996) 1 SCC 690 · Who else cites this
Rekha Mukherjee v. Ashish Kumar Das and othersFollowed¶99
AIR 2005 SC 1944 · Who else cites this
Tungabhadra Industries Ltd., vs. Government of A.P.Referred¶91
(1964) 5 SCR 174 · Who else cites this
Kunhayammed vs. State of KeralaFollowed¶111
(2000) 6 SCC 359 · Who else cites this
Khoday's Distilleries Ltd., Vs. Sri.Mahadeshwara Sakkare Kharkhane Ltd.Followed¶93
(2019) 4 SCC 376 · Who else cites this
SMT. JAYALAKSHMI R.
SHRI N NAGARAJ
SMT. V SHAKUNTHALA
SMT. PREMA
SMT. SHILPA
SMT. C. SUSHEELA
S.R.KRISHNA KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
