Full Text
HIGH COURT OF DELHI
Date of order: 15th October, 2024
SH J.M KOHLI (THROUGH LR MS USHA KOHLI).....Petitioner
Through: Mr. Gagan Gandhi, Advocate.
Through: Mr. Kanwal Chaudhary, Advocate
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant civil revision petition under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) has been filed on behalf of the petitioner seeking setting aside of the order dated 7th May, 2024 passed by the learned District Judge – 04, West, Tis Hazari Courts, Delhi in Ex No. 604/2022.
2. The brief facts that the led to the filing of the instant revision petition are as under: a. The respondent/decree holder (through legal heirs) is the wife of the deceased petitioner/judgment debtor (through legal heirs) who passed away on 28th January, 2022 during the pendency of civil suit bearing CS/SCJ No. 94834/2016 which was adjudicated vide order dated 1st July, 2022. The said suit was filed by the respondent/plaintiff against the petitioner/defendant seeking partition in the property bearing No.50/5, East Punjabi Bagh, New Delhi (hereinafter “suit property). b. In accordance with the preliminary decree dated 31st May, 2003, a final judgment and decree dated 1st July, 2022 was passed by the learned Civil Judge – 04, Central, Tiz Hazari Courts in favour of the respondent and the parties were held entitled to half share each in the suit property. Accordingly, the respondent/decree holder filed an execution petition bearing No. 604/2022 and in response to the same, the LRs of the petitioner/deceased judgment debtor filed objections. c. The learned District Judge – 04, West, Tis Hazari Courts, Delhi in Ex No. 604/2022, vide its order dated 22nd January, 2024, dismissed the petitioner’s objections. Pursuant to the same, the petitioner herein filed an application under Order XLVII Rule 1 read with Section 114 and 151 of the CPC, thereby, seeking review of the order dated 22nd January,
2024. The said review application was dismissed by the learned Execution Court vide order dated 7th May, 2024. d. Being aggrieved by the impugned order dated 7th May, 2024, the petitioner has filed the instant revision petition seeking setting aside of the same.
3. Learned counsel appearing on behalf of the petitioner submitted that the impugned order is bad in law as the same has been passed without taking into consideration the entire facts and circumstances of the case.
4. It is submitted that the respondent/decree holder failed to bring the LRs of the deceased judgment debtor on record by virtue of an application under Order XXII Rule 4 (1) of the CPC within the limitation period and hence, the aforementioned civil suit stands abated.
5. It is submitted that the respondent cannot file the execution petition since she did not become the member of the Punjabi Bagh Co-operative House Building Society and hence, the property, which is the subject matter of the execution petition could not have been transferred in her name as per the condition stipulated in the sale deed dated 14th July, 1964 between the Refugees Co-operative Housing Society Ltd. and Sh. JM Kohli, i.e., the deceased judgment debtor/petitioner.
6. It is submitted that the respondent obtained the final decree dated 1st July, 2022 by playing fraud upon the learned Trial Court which ought to have been examined on merits since the fraud vitiates all solemn acts.
7. It is submitted that the impugned order is silent qua the plea of absolute ownership in favour of the LR of the deceased judgment debtor/petitioner based upon Section 14 (1) of the Hindu Succession Act,
1956.
8. It is submitted that the learned Execution Court failed to appreciate that there are errors of law which are apparent on the face of the order dated 22nd January, 2024 which makes it liable to be reviewed, however, the learned Execution Court erred by dismissing the petitioner’s review application.
9. Therefore, it is submitted that the instant petition may be allowed and the reliefs be granted as prayed for.
10. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being not maintainable.
11. It is submitted that the question before this Court is to decide whether the captioned revision petition is maintainable against an order of Subordinate Court rejecting on merits, an application for review of an appealable decree?
12. It is submitted that in the instant petition, the petitioner has challenged the impugned order dated 7th May, 2024 by virtue of which the petitioner’s application seeking review of judgment dated 22nd January, 2024 was dismissed.
13. It is submitted that in the instant case, there already exists an appealable decree dated 22nd January, 2024 and the petitioner ought to have challenged the said decree by way of an appeal, instead, he challenged the order of dismissal of review application, and the same is against the settled position of law. It is submitted that when the review application stands rejected, the petitioner had a right to question the decree of Execution Court by way of an appeal, however, the petitioner chose not to prefer any appeal and has rather preferred the captioned revision petition which is not maintainable.
14. Therefore, in view of the foregoing submissions, it is prayed that the instant petition may be dismissed.
15. Heard the learned counsel appearing on behalf of the parties and perused the material available on record.
16. At the outset, the respondent has challenged the maintainability of the instant revision petition, therefore, this Court deems it appropriate to settle the issue of maintainability before delving into the merits of the same.
17. Before delving into the adjudication of the aforesaid issue, this Court deems it appropriate to first state that there is no doubt that the objections filed by the petitioner before the learned Executing Court had been filed and adjudicated under Order XXI Rule 97, Rule 99, Rule 100 and Rule 101 of the CPC. Therefore, in terms of Rule 103 of Order XXI of the CPC, wherein adjudication has been made either under Rule 98 or Rule 100, the said order shall have the same force and shall be subject to the same conditions as to an order otherwise, if it were a decree. Thus, it is clear that the order dated 22nd January, 2024, by virtue of which the petitioner’s objections were dismissed is an appealable decree.
18. At this stage, the short question that arises before this Court is as to whether a revision petition under Section 115 of the CPC is maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in an execution petition?
19. Insofar the provisions of CPC are concerned, an application seeking a review of a judgment and decree passed in a civil suit is maintainable under Order XLVII Rule 1 of the CPC. Rule 4 of Order XLVII of the CPC further provides that where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. Sub rule (2) of Rule 4 of Order XLVII of the CPC provides that where the Court is of opinion that the application for review should be granted, it shall grant the same.
20. Rule 7 of Order XLVII of the CPC provides that an order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. In fact, Order XLIII Rule 1(w) of the CPC supplements Order XLVII Rule 7 of the CPC by providing that an appeal would lie against an Order granting an application for review, passed under Rule 4(2) of Order XLVII of the CPC.
21. Therefore, the aforesaid observations make it crystal clear that an order rejecting a review application is not appealable. However, in the present case, the petitioner has sought revision of a review order which challenged an appealable decree by virtue of which the petitioner’s objections against the execution petition was rejected.
22. Before proceeding further, this Court has referred to the judgment of the Hon’ble Supreme Court, passed in Rahimal Bathu v. Ashiyal Beevi, 2023 SCC OnLine SC 1226, relevant extracts of which are as under:
appealable decree in existence at the time when the revisional jurisdiction was invoked. Whereas, in the case at hand there was already an appealable decree in existence when the revisional powers were invoked. In fact, the review application sought review of an appealable decree and not just a mere order that might have been passed by the court in the course of a suit. The revision was filed against rejection of that review application. At that stage, when the review application was rejected, the aggrieved party had a right to question the decree of the trial court in an appeal. In these circumstances, the question that needs determination is, whether, against an order of the Subordinate Court rejecting on merits an application for review of an appealable decree, a revision be entertained. ***
25. What is clear from the above observations is, that where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated, reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law. But where the review petition is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. 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.
26. Apart from above, there is another reason also for a revisional court not to entertain a revision against an order rejecting on merits an application for review of an appealable decree, which is, if the revisional court sets aside or modifies or alters a trial court's decree, the decree of the trial court would merge in the one passed by the revisional court. In consequence, the right of the party aggrieved by the trial court's decree to file an appeal would get affected. Further, 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…”
23. Perusal of the aforesaid excerpts of the judgment shows that Section 115 of the CPC circumscribes the limits of High Court wherein the High Court can only look into the jurisdictional error committed by the subordinate Courts. Further, it was observed by the Hon’ble Supreme Court that there is no appeal against the order of dismissal of a review application, but if the subordinate Court has granted the review, then the aggrieved party would have the right to file an appeal under Order XLIII Rule 1(w) of the CPC reads with Order XLVII Rule 7 of the CPC, because in such case, by allowing the review application, the Court concerned would have altered/modified/reversed the decree and the order of the Trial Court would now stand merged with the order passed in the review application. However, where a review application is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Court shall have to challenge the original decree and not the order dismissing the review petition within the time stipulated by law.
24. Summarily stated, as per the settled position of law when a review petition is simply dismissed, the decree in such case does not have any affect, i.e., no modification is made thereto and such order simply reaffirms the earlier decree/order of the Court. In such scenario, there is no question of merger of any order with the subsequent order and the aggrieved party shall be at liberty to challenge the original order/decree against whom the review application was filed as the position and rights of that party shall remain same as it was before filing of the review application.
25. Now adverting to the instant matter where it is observed by this Court that there was already an appealable decree, i.e., order dated 22nd January, 2024 in existence when the revisional powers were invoked by the petitioner. In fact, the review application sought review of an appealable decree and not just a mere order that might have been passed by the Court concerned in the course of proceedings. Moreover, the learned Executing Court dismissed the petitioner’s review application on merits and thus, it is not disputed there cannot be an appeal thereto as per the settled position of law.
26. In view of the same, it is made out that the present revision was filed against rejection of that review application and at that stage, when the review application was rejected, the aggrieved party, i.e., the petitioner herein had a right to assail the decree of the Executing Court in an appeal.
27. This Court is of the considered view that where an appealable decree has been passed, no revision petition should be entertained under Section 115 of the CPC against an order rejecting a review application on merits. As per the CPC and the observations made by the Hon’ble Supreme Court in the aforesaid judgment, 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. Taking into consideration the said judicial dicta of the Hon’ble Supreme Court, the instant petition is liable to be dismissed.
28. Accordingly, in view of the foregoing discussions on facts and law, the instant revision petition is dismissed on the ground of nonmaintainability of the same. Pending applications, if any, also stands dismissed.
29. The petitioner is at liberty to approach the appropriate forum of law in accordance with the law to assert his rights. It is made clear that the duration for which the captioned petition was pending before this Court shall stand computed while calculating the limitation period to exhaust any other remedy available to the petitioner under the relevant provisions of law. It is also made clear that this Court has not made any expression with respect to the merits of the instant case.
30. The order be uploaded on the website forthwith.