ASHOK SHRIPATI THULE AND OTHERSversusSHYAM JAYARAM MOKASHI

                                                                    AO-237-2023 (1).doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                 APPEAL FROM ORDER NO. 237 OF 2023
                               WITH
                INTERIM APPLICATION NO. 3325 OF 2023
                               WITH
              INTERIM APPLICATION (ST) NO. 35672 OF 2025
                                IN
                 APPEAL FROM ORDER NO. 237 OF 2023


1) Ashok Shripati Thule (Since deceased)          ]
   Aged about 48 years, Occ: Service              ]
   Through Legal Heirs                            ]
1A Sulochana Ashok Thule                          ]
   Aged about 58 years, Occ: Housewife            ]
1B Vishal Ashok Thule                             ]
   Aged about 40 years, Occ: Service              ]
1C Ashwini Mahesh Sonar                           ]
   Aged about 36 years, Occ: Farmer               ]
1D Aboli Ashok Thule                              ]
   Aged about 23 years, Occ: Student              ]
2) Leela Prakash Thule                            ]
   Aged about 42 years, Occ: Household            ]
3) Vaishali Mahesh Sathe                          ]
   Aged about 25 years, Occ: Household            ]
4) Mangala Mangesh Khandale                       ]
   Aged about 23 years, Occ: Household            ]
5) Ganesh Prakash Thule (Since Deceased)          ]
   Aged about 20 years, Occ: Service              ]
   Through Legal Heir                             ]
5A Snehal Ganesh Thule                            ]
   Aged about 26 years, Occ: Housewife            ]
6) Gauri R. Gharge                                ]
   Aged about 18, Occ: Student                    ]
   All residing at House No. 180, A Ward,         ]
   Lonavala, Taluka Mawal, Dist: Pune, Lonavala   ] ...Appellants


        Versus



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1) Shyam Jayaram Mokashi (Since Deceased)     ]
   Through Legal Heirs                        ]
   Aged about 80 years,                       ]
   Residing at, Gopal Kunj, A Ward, ]
   Bhangarwadi, Lonavala Taluka, Mawal, Dist: ]
   Pune                                       ]
1A Shriya Shyam Mokashi                        ]
   Residing at 201, Rajguru Apartments,        ]
   Baburao Parulekar Road, Dadar               ]
   (West), Mumbai - 400 028                    ]
1B Paresh Shyam Mokashi                        ]
   Residing at 601, A- Wing, Rustomjee         ]
   Elanza, Goregaon, Mumbai - 400 065          ]
1C Mahesh Shyam Mokashi                        ]
   Residing at Flat No. 1, Shreeramgad         ]
   Apartments, Lane No. 14, Prabhat            ]
   Road, Pune 411 004                          ] ...Respondents


Mr. Rahul Soman a/w Mr. Suyash More, for the Appellant.
Mr. Aumkar Joshi, for the Respondent.


                    CORAM : SHARMILA U. DESHMUKH, J.
                    DATE : AUGUST 6, 2026
                                --------------

ORDER :



1.       The captioned Appeal filed under Order 43, Rule 1(w) of Code of

Civil Procedure, 1908 (for short “CPC”), is at the instance of the original

Plaintiff being aggrieved by the impugned judgment and order dated 4 th

October, 2022, passed by the District Judge at Pune in Civil Review

Application No. 8 of 2022, allowing the review and setting aside the

judgment and order dated 30th November, 2021, passed in Regular Civil

Appeal No. 718 of 2012.


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2.       By the impugned judgment, the Appellate Court has allowed the

Appeal No. 718 of 2012 and quashed and set aside the judgment and

decree dated 19th April, 2012, passed by the Civil Judge, Junior Division,

Vadgaon, Mawal, in Regular Civil Suit No. 55 of 1989.

3.       A preliminary objection has been raised to the maintainability of

the appeal by the Respondents. The Counsel were therefore heard on

the issue of maintainability before the hearing on merits.

4.       Mr. Joshi, learned counsel for the Respondents, would submit

that the Appeal from Order is not maintainable as the provisions of

Clause (w) of Rule 1 of Order XLIII of CPC has been deleted by the

Bombay Amendment published in the Government Gazette on 11 th

March, 1926 and by notification of 1st November, 1966, published on 6th

October, 1966.

5.       He would further submit that in view of an error apparent on

record, the Appellate Court had rightly exercised the jurisdiction of

review and the impugned order is not merely an order granting review

but is a composite order setting aside the decree of the Trial Court in

exercise of appellate powers, as against which a Second Appeal would

be maintainable. In support, he relies upon decision in the case of

Kunversi Ratansi Patel vs Pitamberdas Ramdas And Others 1.

6.       Mr. Soman, learned counsel for the Appellant, would submit that

the Appeal From Order would be maintainable and the deletion of
1    AIR 1927 Bombay 599

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Clause (w) of Order XLIII Rule 1 by the notification dated 6 th October,

1966 would not have any effect on the maintainability in view of the

Code of Civil Procedure (Amendment) Act, 1976 (for short ‘Amendment

Act’), which received the assent of the President on 1 st September,

1976. He submits that Section 97 of the Amendment Act of 1976, which

is repeal and saving clause provides that any amendment made by the

High Court before the commencement of the Amendment Act of 1976

shall except insofar as such amendment is consistent with the provisions

of the principal Act, as amended by the Amended Act, shall stand

repealed. He submits that in view thereof the notification of 6 th

October, 1966 deleting the Clause (w) of Rule 1 of Order XLIII stands

automatically repealed as the same is inconsistent with the provisions

of the principal Act as amended.

7.       He submits that the Amendment Act amended Order XLVII by

inserting Rule 4 which specifically provides for notice to be given to the

opposite party before the application for review is granted and the

Parliament did not delete Rule 1(w) of Order 43, which indicates the

legislative      intent   that   appeals   against   order   granting    review

applications shall continue to be maintainable. He submits that in the

case of Waman Ramchandra Bhayde And Others vs Kanta Narayan

Patel And Others2, this Court has categorically held that an Appeal

Order 43 Rule 1(w) of CPC is permitted against an order granting review
2    2013(1)Mh.L.J. 113

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application.

8.       He would further submit that the review court has committed a

grave error in passing the impugned order dated 4 th October, 2022

without any re-hearing on the merits of the Appeal as mandatorily

contemplated under Order XLVII Rule 8 of CPC, and is unsustainable

order as against which the Appeal From Order is maintainable.

9.       I have given my thoughtful consideration to the submissions

canvassed.

10.      The present Appeal has been filed under Order 43 Rule 1(w) of

CPC which provides that an Appeal shall lie from an order under Rule 4

Order XLVII granting an application for review. In 1976, the Code of Civil

Procedure (Amendment) Act, 1976 was enacted for amending CPC and

Limitation Act. By the Bombay Amendment to CPC, Clause (w) of Rule 1

of Order XLVII came to be deleted on 9th March, 1926. Section 97(1) of

the Amendment Act, which is the repeal and saving clause reads as

under :

       "Any amendment made, or any provision inserted in the principal Act by
       State Legislature or a High Court before the commencement of this Act
       shall, except in so far as such amendment or provision is consistent with the
       provisions of the principal Act as amended by this Act, shall stand repealed"



11.      The language of Section 97(1) of the Amendment Act clearly

spells out that any amendment which can be termed to be inconsistent

with the provisions of the principal Act as amended by the Amendment



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Act, stands repealed. The reference in Section 97(1) of the Amendment

Act to a High Court is by reason of Section 122 of the CPC, which

permits the High Court to make rules regulating their own procedure

and the procedure of the civil courts subjects to their superintendence,

and may by such rules annul, alter or add to any of the rules contained in

the First Schedule to the CPC. The Bombay amendment was exercise of

powers under Section 122 of CPC, which omission can no longer be

sustained in view of Section 97(1) of Amendment Act.

12.      The issue as regards maintainability of appeal against an

application granting review is no longer res integra and stands decided

in Waman Ramchandra Bhayde And Others vs Kanta Narayan Patel

And Others (supra). The Co-ordinate Bench in that case considered the

statutory provisions governing review and appeal against order granting

review in the context of challenge to an order granting review

application and permitting amendment of written statement before the

Appellate Court. After noting the statutory provisions, the Court held as

under:

       “10. Scope of present Appeal needs to be found out within the frame
       work of the provisions of law and facts of the matter at hand are not
       determining for the said purpose. Order 47, Rule 1 Civil Procedure Code
       permits Application for Review of Judgment and Order to be filed, if
       contingencies stipulated therein exist. Rule 7 specifically lays down that
       Order rejecting Review is not appealable but order granting such
       Application can be objected to at once to by the Appeal From Order
       granting the same or then in an Appeal from the Decree or Order finally
       passed or made in the suit. Other relevant provision is Order 47 Rule 8.
       The said provision reads as under:

       ORDER XLVII RULE 8 , CIVIL PROCEDURE CODE

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       “Registry of application granted, and order for rehearing: When an
       application for review is granted, a note thereof shall be made in the
       register and the Court may at once rehear the case or make such order
       regarding to the rehearing as it thinks fit.
       11. Rule 8 therefore clearly shows that when an Application for review is
       “granted”, its note is required to be taken in the Register. These words
       “granted” need to be under stood in light of provisions of Order 47, Rule
       7, Civil Procedure Code, where it is clarified that Order rejecting
       Application is not appealable and Order grating the same can be appealed
       from.

       12. The latter part of Rule 8 provides that where an Application is granted
       the Court granting it may “at once” rehear or make such Order in regard
       to “rehearing” a Suit as it thinks fit. Thus, in the scheme of Rule grant of
       Review application and consequential rehearing are expected to be two
       independent exercises. The Court is permitted and empowered to
       undertake this latter exercise of “rehearing” at once, but merely because
       it is taken up at once, it cannot and does not cease to be an independent
       or separate existence.

       13. The Appeal is permitted against Order granting Application for
       Review under Rule 7. The latter part of Rule 7 shows that such an Order
       granting Review can also be questioned in a substantive Appeal from
       Decree or Order finally passed or made in the suit. This Decree or Order
       finally passed comes into existence only when consequential rehearing is
       completed by such Court either at once or at some other date. When
       Order 47, Rules 7 and 8 are read together, it is clear that Appeal
       permitted under Order 47 Rule 7 read with Order 43 Rule 1(w) of Civil
       Procedure Code is only against an Order granting Review. This is an an
       order which shows satisfaction of the Court about fulfillment of the
       requirements of Order 47 Rule 1 of Civil Procedure Code, and therefore,
       necessity of consequential rehearing of the issue on merits. Adjudication
       on merits which is after rehearing cannot be subjected to Appeal under
       Order 47, Rule 7 read with Order 43 Rule 1(w) Civil Procedure Code. Such
       challenge on merits after rehearing is governed by Section 96 read with
       Order XLI CPC.                                      (Emphasis supplied).”

13.      The decision is an authority for the proposition that an Appeal is

permitted under Order XLVII, Rules 7 and 8 read with Order 43 Rule (1)

(w) only against an order granting review. The course is not permissible

where there is an adjudication on merits after rehearing.

14.      The statutory framework of review jurisdiction as contained in

Order XLVII is that on presentation of review application, notice is

issued to the other party and if the Court is satisfied, the application for

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review is granted. The next stage is under Order XLVII Rule 8, which

enables the Court to at once re-hear the case or make such order in

regard to the re-hearing as it thinks fit. Once the review is granted, the

earlier order or decree is revived and matter is re-heard on merits. Upon

such rehearing on merits, it may result into sustaining the former decree

or may be a variation of the former decree. The right made available

against the order granting review is either to challenge the order by

filing Appeal under Order 43 Rule 1(w) or file a substantive Appeal from

Decree or Order finally passed or made in the Suit.

15.      As held in Waman Ramchandra Bhayde And Others vs Kanta

Narayan Patel And Others (supra), the rehearing can take place at once

or later and because the rehearing takes place, the same does not cease

to be an independent exercise. The consequence of an immediate re-

hearing does not clothe the order on merits as an order granting review.

Resultantly, the order is a Decree or Order passed in Appeal, which can

be challenged under Section 100 of CPC.

16.      In light of the statutory background, the present facts will have to

be examined to ascertain whether the impugned order is an application

granting review, or adjudication on merits after the grant of application

for review.

17.      In the present case, by judgment and order dated 19 th April, 2012,

the Trial Court dismissed the suit as well as the counterclaim, and being


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aggrieved by the dismissal of the counterclaim, the original Defendant

filed Civil Appeal No. 718 of 2012 before the First Appellate Court,

which came to be dismissed by judgment and order dated 30 th

November, 2021, against which the original Defendant filed Civil Review

Application No. 8 of 2022 and by the impugned judgment and order

dated 4th October, 2022, the Civil Revision Application was allowed and

the entire Appeal No. 718 of 2012 was allowed.

18.       Perusal of the impugned order dated 4 th October, 2022 indicates

that the Appellate Court framed the necessary issues as to whether the

judgment dated 30th November, 2021 demonstrate any error on the face

of the record. The other issues framed were as regards the ownership

rights of the Respondent in the subject property.

19.       Insofar as Issue No. 1 is concerned, the Appellate Court held that

while deciding Appeal No. 718 of 2012, the observation was that on 4 th

December, 1989 there was an order that written statement is not filed

and without setting aside the said order, the written statement was

taken on record. However, in fact, the order of 4 th December, 1989 was

set aside, which was not noticed by the Appellate Court and therefore

there is error apparent on record.

20.           The course which was required to be adopted by the First

Appellate Court was thereafter, as contemplated by Rule 8 of Order

XLVII, to rehear the case or make such order in regard to rehearing as it


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thinks fit. This rehearing could have been taken place at once and the

impugned order makes it clear that the Court has thereafter proceeded

to rehear the matter and has passed the impugned judgment as under :

       "१. पुनर्विलोकन अर्ज मंजूर करण्यात येत आहे आणि नियमित दिवाणी अपिल क्रमांक
       ७१८/२०१२ बाबत या न्यायालयाने दिलेला दिनांक ३०/११/२०२१ रोजीचा न्यायनिर्णय व
       हुकूमनामा रद्द करण्यात आला असून प्रस्तुत अपिल खालीलप्रमाणे मंजूर करण्यात आले आहे:-

       अ) नियिमत दिवाणी अपिल क्रमांक ७१८/२०१२ हे मंजूर करण्यात आले असून विद्वान दिवाणी
       न्यायाधीश, कनिष्ठ स्तर, वडगांव मावळ यांचा नियमित दिवाणी मुकदमा नंबर ५५/१९८९, निकाल
       तारीख १९/०४/२०१२ हा न्यायनिर्णय व हुकूमनामा रद्द करण्यात येत आहे आणि दावा
       खालीलप्रमाणे मंजूर करण्यात येत आहे.

       ब) लोणावळा नगरपरिषद येथील हद्दीतील घर क्रमांक २३४ याचे क्षेत्र ७६० चौरस फुट याची दक्षिण
       उत्तर लांबी २४.६ चौरस फुट आणि पूर्व पश्चिम लांबी १७.६ फुट या वादमिळकतीचा ताबा वादींनी
       प्रतिवादीस तीन महिन्याचे आत दयावा.

       क) वादींनी, प्रतिवादीला वादमिळकतीचे दावा दाखल तारखेपासून ते पुढे दावा मिळकतीचा ताबा
       देईपर्यंतचे दरम्यानचे उत्पन्न दयावे. त्यासाठी दिवाणी प्रक्रिया संहिता आदेश २१ नियम १२ प्रमाणे
       चौकशी अर्ज प्रतिवादींनी दाखल करावा.”

21.      The impugned order not only allowed the review application but

also quashed and set aside the earlier order of 30 th November, 2021 and,

the judgment and decree of the Trial Court dated 19 th April, 2012 and

the Plaintiff was ordered to hand over possession of the suit property to

the Defendant within a period of three months and pay mesne profits.

22.      The impugned order cannot be characterized as an order granting

an application for review, but is an order passed after rehearing on

merits consequent to the application granting review. Merely because

the re-hearing took place at once, the order does not cease to be an

adjudication on merits. By reason of the impugned order, there is a

fresh decree which has come into existence, which can be challenged

only by way of a Second Appeal under Section 100 of CPC.


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23.      The option available under Rule 7 of Order XLVII, is against an

order granting review application, which indicates separate and

independent existence of power of review and the appellate powers.

The impugned order is consequence of exercise of appellate powers.

24.       The impugned order dated 4th October, 2022 is thus a judgment

passed upon rehearing on merits as against which Appeal will lie under

Section 100 of CPC.

25.      In light of the above, the Appeal From Order is not maintainable

against the impugned judgment and order dated 4 th October, 2022.

Resultantly, the Appeal is dismissed with liberty to adopt appropriate

proceedings.

26.      Considering that the substantial time was consumed in

prosecuting the present Appeal From Order which is now being held by

this Court to not be maintainable, in the event, the Second Appeal is

filed, the Appellate Court to consider the provisions of Section 14 of

Limitation Act for the purpose of computing the period of limitation.




                                          (SHARMILA U. DESHMUKH, J.)




Arya Chavan                                                              11/11