Holding

An appeal cannot be entertained in anticipation of a review; once a review is granted, the original decree is vacated and only the unrevised part may be appealed, rendering the High Court's allowance of the respondents' first appeal erroneous.

Summary

Rekha Mukherjee, the owner of a property, filed a title suit for eviction against Ashis Kumar Das and others. The respondents filed a suit for specific performance of three sale agreements, which the appellant later cancelled; the trial court dismissed the specific‑performance suit. The respondents obtained a partial review of that dismissal, the court finding an error regarding the earnest‑money issue and restoring the decree in part. The appellant appealed the order allowing the review, while the respondents also filed a first appeal against the original decree. The Supreme Court held that the High Court was wrong to entertain the respondents' first appeal because an appeal cannot be filed in anticipation of a review and, once a review is granted, the original decree is vacated and only the unrevised portion is appealable. Consequently, the decree in the title suit is enforceable and the appellant’s undertaking not to execute the decree remains ineffective, leading to the appeals being allowed.

Issues considered

Whether the High Court was justified in entertaining the respondents' first appeal against the original decree after a partial review had been granted.
Whether an appeal can be filed in anticipation of a review petition under the CPC.
Effect of a partial review on the status of the original decree and the scope of appeal.
Whether the appellant's undertaking not to execute the decree remains operative after the review and subsequent orders.

Legislation cited

Code of Civil Procedure, 1908s. Order 1000, s. Order 107, s. Order 108, s. Order 112, s. Order 113, s. Order 115, s. Order 117, s. Order 118, s. Order 119, s. Order 120, s. Order 121, s. Order 122, s. Order 123, s. Order 124, s. Order 125, s. Order 126, s. Order 127, s. Order 128, s. Order 129, s. Order 12 Rule 6, s. Order 130, s. Order 131, s. Order 132, s. Order 133, s. Order 134, s. Order 135, s. Order 136, s. Order 137, s. Order 138, s. Order 139, s. Order 140, s. Order 141, s. Order 142, s. Order 143, s. Order 144, s. Order 145, s. Order 146, s. Order 147, s. Order 148, s. Order 149, s. Order 150, s. Order 151, s. Order 152, s. Order 153, s. Order 154, s. Order 155, s. Order 156, s. Order 157, s. Order 158, s. Order 159, s. Order 160, s. Order 161, s. Order 162, s. Order 163, s. Order 164, s. Order 165, s. Order 166, s. Order 167, s. Order 168, s. Order 169, s. Order 170, s. Order 171, s. Order 172, s. Order 173, s. Order 174, s. Order 175, s. Order 176, s. Order 177, s. Order 178, s. Order 179, s. Order 180, s. Order 181, s. Order 182, s. Order 183, s. Order 184, s. Order 185, s. Order 186, s. Order 187, s. Order 188, s. Order 189, s. Order 190, s. Order 191, s. Order 192, s. Order 193, s. Order 194, s. Order 195, s. Order 196, s. Order 197, s. Order 198, s. Order 199, s. Order 200, s. Order 201, s. Order 202, s. Order 203, s. Order 204, s. Order 205, s. Order 206, s. Order 207, s. Order 208, s. Order 209, s. Order 210, s. Order 211, s. Order 212, s. Order 213, s. Order 214, s. Order 215, s. Order 216, s. Order 217, s. Order 218, s. Order 219, s. Order 21 Rules 95-101, s. Order 220, s. Order 221, s. Order 222, s. Order 223, s. Order 224, s. Order 225, s. Order 226, s. Order 227, s. Order 228, s. Order 229, s. Order 230, s. Order 231, s. Order 232, s. Order 233, s. Order 234, s. Order 235, s. Order 236, s. Order 237, s. Order 238, s. Order 239, s. Order 23 Rule 1, s. Order 23 Rule 3, s. Order 23 Rule 4, s. Order 240, s. Order 241, s. Order 242, s. Order 243, s. Order 244, s. Order 245, s. Order 246, s. Order 247, s. Order 248, s. Order 249, s. Order 250, s. Order 251, s. Order 252, s. Order 253, s. Order 254, s. Order 255, s. Order 256, s. Order 257, s. Order 258, s. Order 259, s. Order 260, s. Order 261, s. Order 262, s. Order 263, s. Order 264, s. Order 265, s. Order 266, s. Order 267, s. Order 268, s. Order 269, s. Order 270, s. Order 271, s. Order 272, s. Order 273, s. Order 274, s. Order 275, s. Order 276, s. Order 277, s. Order 278, s. Order 279, s. Order 280, s. Order 281, s. Order 282, s. Order 283, s. Order 284, s. Order 285, s. Order 286, s. Order 287, s. Order 288, s. Order 289, s. Order 290, s. Order 291, s. Order 292, s. Order 293, s. Order 294, s. Order 295, s. Order 296, s. Order 297, s. Order 298, s. Order 299, s. Order 300, s. Order 301, s. Order 302, s. Order 303, s. Order 304, s. Order 305, s. Order 306, s. Order 307, s. Order 308, s. Order 309, s. Order 310, s. Order 311, s. Order 312, s. Order 313, s. Order 314, s. Order 315, s. Order 316, s. Order 317, s. Order 318, s. Order 319, s. Order 320, s. Order 321, s. Order 322, s. Order 323, s. Order 324, s. Order 325, s. Order 326, s. Order 327, s. Order 328, s. Order 329, s. Order 330, s. Order 331, s. Order 332, s. Order 333, s. Order 334, s. Order 335, s. Order 336, s. Order 337, s. Order 338, s. Order 339, s. Order 340, s. Order 341, s. Order 342, s. Order 343, s. Order 344, s. Order 345, s. Order 346, s. Order 347, s. Order 348, s. Order 349, s. Order 350, s. Order 351, s. Order 352, s. Order 353, s. Order 354, s. Order 355, s. Order 356, s. Order 357, s. Order 358, s. Order 359, s. Order 360, s. Order 361, s. Order 362, s. Order 363, s. Order 364, s. Order 365, s. Order 366, s. Order 367, s. Order 368, s. Order 369, s. Order 370, s. Order 371, s. Order 372, s. Order 373, s. Order 374, s. Order 375, s. Order 376, s. Order 377, s. Order 378, s. Order 379, s. Order 380, s. Order 381, s. Order 382, s. Order 383, s. Order 384, s. Order 385, s. Order 386, s. Order 387, s. Order 388, s. Order 389, s. Order 390, s. Order 391, s. Order 392, s. Order 393, s. Order 394, s. Order 395, s. Order 396, s. Order 397, s. Order 398, s. Order 399, s. Order 400, s. Order 401, s. Order 402, s. Order 403, s. Order 404, s. Order 405, s. Order 406, s. Order 407, s. Order 408, s. Order 409, s. Order 41, s. Order 410, s. Order 411, s. Order 412, s. Order 413, s. Order 414, s. Order 415, s. Order 416, s. Order 417, s. Order 418, s. Order 419, s. Order 420, s. Order 421, s. Order 422, s. Order 423, s. Order 424, s. Order 425, s. Order 426, s. Order 427, s. Order 428, s. Order 429, s. Order 430, s. Order 431, s. Order 432, s. Order 433, s. Order 434, s. Order 435, s. Order 436, s. Order 437, s. Order 438, s. Order 439, s. Order 440, s. Order 441, s. Order 442, s. Order 443, s. Order 444, s. Order 445, s. Order 446, s. Order 447, s. Order 448, s. Order 449, s. Order 450, s. Order 451, s. Order 452, s. Order 453, s. Order 454, s. Order 455, s. Order 456, s. Order 457, s. Order 458, s. Order 459, s. Order 460, s. Order 461, s. Order 462, s. Order 463, s. Order 464, s. Order 465, s. Order 466, s. Order 467, s. Order 468, s. Order 469, s. Order 470, s. Order 471, s. Order 472, s. Order 473, s. Order 474, s. Order 475, s. Order 476, s. Order 477, s. Order 478, s. Order 479, s. Order 47 Rule 1, s. Order 47 Rule 6, s. Order 47 Rule 7, s. Order 480, s. Order 481, s. Order 482, s. Order 483, s. Order 484, s. Order 485, s. Order 486, s. Order 487, s. Order 488, s. Order 489, s. Order 490, s. Order 491, s. Order 492, s. Order 493, s. Order 494, s. Order 495, s. Order 496, s. Order 497, s. Order 498, s. Order 499, s. Order 500, s. Order 501, s. Order 502, s. Order 503, s. Order 504, s. Order 505, s. Order 506, s. Order 507, s. Order 508, s. Order 509, s. Order 510, s. Order 511, s. Order 512, s. Order 513, s. Order 514, s. Order 515, s. Order 516, s. Order 517, s. Order 518, s. Order 519, s. Order 520, s. Order 521, s. Order 522, s. Order 523, s. Order 524, s. Order 525, s. Order 526, s. Order 527, s. Order 528, s. Order 529, s. Order 530, s. Order 531, s. Order 532, s. Order 533, s. Order 534, s. Order 535, s. Order 536, s. Order 537, s. Order 538, s. Order 539, s. Order 540, s. Order 541, s. Order 542, s. Order 543, s. Order 544, s. Order 545, s. Order 546, s. Order 547, s. Order 548, s. Order 549, s. Order 550, s. Order 551, s. Order 552, s. Order 553, s. Order 554, s. Order 555, s. Order 556, s. Order 557, s. Order 558, s. Order 559, s. Order 560, s. Order 561, s. Order 562, s. Order 563, s. Order 564, s. Order 565, s. Order 566, s. Order 567, s. Order 568, s. Order 569, s. Order 570, s. Order 571, s. Order 572, s. Order 573, s. Order 574, s. Order 575, s. Order 576, s. Order 577, s. Order 578, s. Order 579, s. Order 580, s. Order 581, s. Order 582, s. Order 583, s. Order 584, s. Order 585, s. Order 586, s. Order 587, s. Order 588, s. Order 589, s. Order 590, s. Order 591, s. Order 592, s. Order 593, s. Order 594, s. Order 595, s. Order 596, s. Order 597, s. Order 598, s. Order 599, s. Order 600, s. Order 601, s. Order 602, s. Order 603, s. Order 604, s. Order 605, s. Order 606, s. Order 607, s. Order 608, s. Order 609, s. Order 610, s. Order 611, s. Order 612, s. Order 613, s. Order 614, s. Order 615, s. Order 616, s. Order 617, s. Order 618, s. Order 619, s. Order 620, s. Order 621, s. Order 622, s. Order 623, s. Order 624, s. Order 625, s. Order 626, s. Order 627, s. Order 628, s. Order 629, s. Order 630, s. Order 631, s. Order 632, s. Order 633, s. Order 634, s. Order 635, s. Order 636, s. Order 637, s. Order 638, s. Order 639, s. Order 640, s. Order 641, s. Order 642, s. Order 643, s. Order 644, s. Order 645, s. Order 646, s. Order 647, s. Order 648, s. Order 649, s. Order 650, s. Order 651, s. Order 652, s. Order 653, s. Order 654, s. Order 655, s. Order 656, s. Order 657, s. Order 658, s. Order 659, s. Order 660, s. Order 661, s. Order 662, s. Order 663, s. Order 664, s. Order 665, s. Order 666, s. Order 667, s. Order 668, s. Order 669, s. Order 670, s. Order 671, s. Order 672, s. Order 673, s. Order 674, s. Order 675, s. Order 676, s. Order 677, s. Order 678, s. Order 679, s. Order 680, s. Order 681, s. Order 682, s. Order 683, s. Order 684, s. Order 685, s. Order 686, s. Order 687, s. Order 688, s. Order 689, s. Order 690, s. Order 691, s. Order 692, s. Order 693, s. Order 694, s. Order 695, s. Order 696, s. Order 697, s. Order 698, s. Order 699, s. Order 700, s. Order 701, s. Order 702, s. Order 703, s. Order 704, s. Order 705, s. Order 706, s. Order 707, s. Order 708, s. Order 709, s. Order 710, s. Order 711, s. Order 712, s. Order 713, s. Order 714, s. Order 715, s. Order 716, s. Order 717, s. Order 718, s. Order 719, s. Order 720, s. Order 721, s. Order 722, s. Order 723, s. Order 724, s. Order 725, s. Order 726, s. Order 727, s. Order 728, s. Order 729, s. Order 730, s. Order 731, s. Order 732, s. Order 733, s. Order 734, s. Order 735, s. Order 736, s. Order 737, s. Order 738, s. Order 739, s. Order 740, s. Order 741, s. Order 742, s. Order 743, s. Order 744, s. Order 745, s. Order 746, s. Order 747, s. Order 748, s. Order 749, s. Order 750, s. Order 751, s. Order 752, s. Order 753, s. Order 754, s. Order 755, s. Order 756, s. Order 757, s. Order 758, s. Order 759, s. Order 760, s. Order 761, s. Order 762, s. Order 763, s. Order 764, s. Order 765, s. Order 766, s. Order 767, s. Order 768, s. Order 769, s. Order 770, s. Order 771, s. Order 772, s. Order 773, s. Order 774, s. Order 775, s. Order 776, s. Order 777, s. Order 778, s. Order 779, s. Order 780, s. Order 781, s. Order 782, s. Order 783, s. Order 784, s. Order 785, s. Order 786, s. Order 787, s. Order 788, s. Order 789, s. Order 790, s. Order 791, s. Order 792, s. Order 793, s. Order 794, s. Order 795, s. Order 796, s. Order 797, s. Order 798, s. Order 799, s. Order 800, s. Order 801, s. Order 802, s. Order 803, s. Order 804, s. Order 805, s. Order 806, s. Order 807, s. Order 808, s. Order 809, s. Order 810, s. Order 811, s. Order 812, s. Order 813, s. Order 814, s. Order 815, s. Order 816, s. Order 817, s. Order 818, s. Order 819, s. Order 820, s. Order 821, s. Order 822, s. Order 823, s. Order 824, s. Order 825, s. Order 826, s. Order 827, s. Order 828, s. Order 829, s. Order 830, s. Order 831, s. Order 832, s. Order 833, s. Order 834, s. Order 835, s. Order 836, s. Order 837, s. Order 838, s. Order 839, s. Order 840, s. Order 841, s. Order 842, s. Order 843, s. Order 844, s. Order 845, s. Order 846, s. Order 847, s. Order 848, s. Order 849, s. Order 850, s. Order 851, s. Order 852, s. Order 853, s. Order 854, s. Order 855, s. Order 856, s. Order 857, s. Order 858, s. Order 859, s. Order 860, s. Order 861, s. Order 862, s. Order 863, s. Order 864, s. Order 865, s. Order 866, s. Order 867, s. Order 868, s. Order 869, s. Order 870, s. Order 871, s. Order 872, s. Order 873, s. Order 874, s. Order 875, s. Order 876, s. Order 877, s. Order 878, s. Order 879, s. Order 880, s. Order 881, s. Order 882, s. Order 883, s. Order 884, s. Order 885, s. Order 886, s. Order 887, s. Order 888, s. Order 889, s. Order 890, s. Order 891, s. Order 892, s. Order 893, s. Order 894, s. Order 895, s. Order 896, s. Order 897, s. Order 898, s. Order 899, s. Order 900, s. Order 901, s. Order 902, s. Order 903, s. Order 904, s. Order 905, s. Order 906, s. Order 907, s. Order 908, s. Order 909, s. Order 910, s. Order 911, s. Order 912, s. Order 913, s. Order 914, s. Order 915, s. Order 916, s. Order 917, s. Order 918, s. Order 919, s. Order 920, s. Order 921, s. Order 922, s. Order 923, s. Order 924, s. Order 925, s. Order 926, s. Order 927, s. Order 928, s. Order 929, s. Order 930, s. Order 931, s. Order 932, s. Order 933, s. Order 934, s. Order 935, s. Order 936, s. Order 937, s. Order 938, s. Order 939, s. Order 940, s. Order 941, s. Order 942, s. Order 943, s. Order 944, s. Order 945, s. Order 946, s. Order 947, s. Order 948, s. Order 949, s. Order 950, s. Order 951, s. Order 952, s. Order 953, s. Order 954, s. Order 955, s. Order 956, s. Order 957, s. Order 958, s. Order 959, s. Order 96, s. Order 960, s. Order 961, s. Order 962, s. Order 963, s. Order 964, s. Order 965, s. Order 966, s. Order 967, s. Order 968, s. Order 969, s. Order 970, s. Order 971, s. Order 972, s. Order 973, s. Order 974, s. Order 975, s. Order 976, s. Order 977, s. Order 978, s. Order 979, s. Order 980, s. Order 981, s. Order 982, s. Order 983, s. Order 984, s. Order 985, s. Order 986, s. Order 987, s. Order 988, s. Order 989, s. Order 990, s. Order 991, s. Order 992, s. Order 993, s. Order 994, s. Order 995, s. Order 996, s. Order 997, s. Order 998, s. Order 999
Income Tax Act, 1961s. Section 280-A
Transfer of Property Act, 1882s. Section 53-A

Subjects

Civil ProcedureReview PetitionAppealDecreeUndertakingSpecific PerformanceTransfer of Property ActDoctrine of EclipseExecutionTitle SuitPart Performance

Judgment

REKHA MUKHERJEE A
v.
ASHIS KUMAR DAS AND ORS.

MARCH 3, 2005

[N. SANTOSH HEGDE AND S.B. SINHA, JJ.] B

Practice and Procedure :

Code of Civil Procedure, 1908; O.XII R.6, O.XXI Rules 95 to IOI rlw
Section 47, O.XLVII R.lCPC, 0.41 : c
Title Suit-Decreed by trial Court-Affirmed by High Court-Supreme
Court recorded an Undertaking given by appellant-owner of the property for
not executing the decree till disposal ofsuit for specific performance-Execution
Peiition-Executing Court directed to seek clarification from Supreme Court D
as to whether execution need to be stayed till disposal of the suit for specific
performance-The Court clarified that the appellant estopped by the
undertaking given by them before this Court-Dismissal of the suit/or specific
performance-Filing of Review Petition-Review Partly allowed-Appeal

-- against-Allowed by the High Court-On appeal, Held: Having filed a review
petition on legal advice and succeeded partly, it was not open to the respondents
to prefer an appeal against the entire decree-High Court was wrong in
E

holding that such an appeal could be filed in anticipation-Hence, the decree
passed in the title suit enforceable-Transfer of Property Act-Section 53-A-
Calcutta Thika Tenancy (Acquisition & Regulations) Act, 1981.

Review-Scope of-Discussed F
Right to Review vis-a-vis Right to appeal-Distinction between.

Doctrines:

Doctrine of eclipse-Applicability of G
The main question which arose for determination in these appeals
was as to whether the High Court was justified in entertaining the first
appeal filed by the respondents against the original judgment and decree
passed in a Suit for specific performance of contract.
473 ll
j

474 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Allowing the appeal, the Court

HELD : I. t. An appeal preferred by the appellant/owner against the
order passed by the trial Court in the Review Petition was maintainable
in terms of Order 47 Rule 1 CPC (484-BI

B 1.2. It was slricto sensu not a case: where a prayer was made for
withdrawing the application for review so as to render the decree wide
open to challenge in an appeal under Section 96 CPC. Respondent may
concede that the appeal filed by the appellant may be allowed or his cross-
objections may be dismissed but if he intends to withdraw the suit or
review application and that too atthe appellate stage, he must make out j
C proper grounds therefor so as to enable the court tO apply its own mind
- ...
thereupon. [485~E-F) •

1.3. Order 23 Rule. I CPC confers a discretionary jurisdiction on the
court. Although. Order 23 Rule I" ipso facto is not applicable to a review
D petition, the principles analogo~s thereto would be, irt terms.whereof an
order directing withd.rawal.of such a suit or abandon·ment of irart of claim
may be allowed only when the Court is satisfied t~at one or the other
conditions specified in" sub-rule (3) of Rule 1 of Order 23 are·satisfied. In

E
terms of rnb-rule (4) of Rule 1 Order 23, the plaintiff shall be liable for .
such cost as the court.may award and shall be precluded from instituting
any fresh suit in respect of such subject niatter or.suchpart ofthe claim.
Such an applic~tion i~ the peculiar facts and circumstances-of the case
-
.
even might not have. been entertained by the High Court. (48S-F-G.:H]

Sushi! Kumar Sen v. State of Bihar, [ 1975) 3 SCR 942, referred to.

F 2.1. 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
I·

requirements contained in Order 41 thereof•. An appeal at the time of its
filing would either be maintainable onvould not be. The High Court, with
respect, was not correct iff holding that such an appeal could be filed in
G anticipation. If such a procedure'' is contemplated: in· thedaw,. the
Respondents might not have filed the substantive appeal or would have
prayed for withdra.wal of the review application- before·~ tfie:trfal court
itself. Having filed a review atJplicatio11" on iegar allvfce· and having
succeeded therein irr part; itwas not ope1Ho it:to'prefer·an·:ai}peal'against
the entire decree whereby the·suit' iit ~its. entirety \\'as1 dis.missed: Tile
H Respondents could have only preferred appeal only from that part of the
REKHA MUKHERJEE v. ASHIS KUMAR DAS 475

decree i~:respect whereof review was not granted. 1487-D-E-Fl A
2.2. 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 B
supplemental proceeding so as to be revived upon setting aside the decree
granting review. 1487-G-HI

Garikapattf Veeraya v. N. Subbaiah Choudhury, (19571 SCR 488 and
Gour Krishna Sarkar and Anr. v. Ni/madhab Saha and Ors., (1922) XXXVI
/
C
Cal.L.J.484, referred to.

3. The High Court wa~ 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 cannot hold in their favour ignoring the binding precedents. The D
Respondents cannot take advantage of their own mistake. They had
furthermore been taking inconsistent and contradictory stands. They had
claimed possession of the suit premises as a tenant in furtherance of a part
performance of contract in terms of Section 53-A of the Transfer of
Property Act and also the title having vested in the State of West Bengal
in terms of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, E
1981. Thus, the decree passed in.the Title Suit has become enforceable.
Hence, the impugned judgments cannot be sustained which are set aside
accordingly. (488-D-E-F; 489-A-B-C(

Sushi/ Kumar Sen v. State of Bihar, (197513 SCR 942, referred to. p
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1509 of2005.

From the Judgment and Order dated 14.10.2004 of the Calcutta High
Court in C.O. No. 3229 of 2004.

WITH
G

C.A. No. 1510 of 2005.

Santanu Mukherjee, Ms.Mridula Ray Bharadwaj, Tarun Kanti and Sharad
Singhania for the Appellant.
H
476 SUPREME COURT REPORTS [2005] 2 S.C.R.

A G.L. Sanghi, J.L. De, Ms. Nandini Mukherjee, Deba P1;asad Mukherjee,
S. Murlidhar and Chanchal Kumar Ganguli for the Respondents.

The Judgment.of the Court was delivered by
,..
S.B: SINHA, J. Leave granted.
B
Both these appeals being inter-related were taken up for hearing together
and are being disposed of by this common judgment. ' ~·
.' '
BACKGROUND FACT:

C The Appellant is the owner of a premise situate at 77/1, Hazra Road,
in the town of Kolkata. The father of the Respondent Nos. I and 2, Manick
Chandra Das, (since deceased) was inducted in the said tenancy on 1.4.1959
for a tenure of 15 years. On the expiry of the period of lease by efflux of
time, the Appellant herein filed Title Suit No. 105 of 1975 in the Court of
D 3rd Munsif, Alipore, for his eviction. The original tenant died during the
pendency of the suit, whereupon the Respondent Nos. 1 and 2 'and their
mother were substituted in his place. The said suit on transfer was renumbere9
as Title Suit No. 412 of 1977. During pendency of the said suit, the parties
entered into settlement pursuant whereto three 'purported agreements' for sale
were executed whereby the Appellant agreed to sell the suit premises to the
E Respondent Nos. 1 & 2 and their mother. The Appellant herein ~lso filed° an
application for grant of income tax clearance certificate in terms of SeCtic:in
280-A of the Income Tax Act, · 1961. Allegedly; o~ the ground that the
Respondent Nos. I and 2 and their mother failed to send the draft deeds' of
sale to the Appellant within the stipu,lated time despite notices ·served on
F them in that behalf, the said agreements '.""er,~ cancelled by the Appellant on
1.6.1990. The mother of Respondent Nos. l ·and 2 died.

On or about 31. l 0.1990, the Respondent Nos. I and 2 filed a suit
before the 9th Assistant District Judge, Alipore, against "the Appellant for
specific perfonnance of the aforementioned three agreements, which was
G marked as Title Suit No. 49 of 1990. In the said suit, the Respondent Nos.
I and 2 herein filed an application for injunction restraining the Appellant
herein fro~ alienating the suit premises. The Appellant filed her written
objection specifying the grounds of cancellation thereof. No reply thereto
was filed by the Respondent Nos I and ~- They filed an application in the
court of I st Munsif in the said Title Suit No. 412 of 1977 for marking the
H Appellant's aforementioned written objection as exbjbit to prove cancellation
REKHA MU KHER.IEE v. ASHIS KUMAR DAS [SINHA . .I.] 477

of agreements so as to enable them to contend that the suit premises had A
vested in the State of West Bengal in terms of the provisions of the Calcutta
Thika Tenancy (Acquisition & Regulation) Act, 1981. According to the
Appellant herein such a stand was taken by the Respondents as existence of
the said agreements negated their said defence. The said written objection
was marked as Ex-R in the said suit.
B
It is not in dispute that the said suit was decreed ar.d the matter ultimately
came up before this Court in Civil Appeal No. 2249 of 1999. By an order
dated 18. l 0.2000, this Court while dismissing the application for grant of
special leave recorded an undertaking given on behalf of the Appellant herein
not to execute the decree passed in Title Suit No. 412 of 1977 till the decision C
of Title Suit No. 49 of 1990. Meanwhile, the Respondent Nos.3 and 4 herein,
who are wives of Respondent Nos. l and 2 respectively, were permitted to
be impleaded as parties in the suit on the premise that they were nominees
in respect of half of their share in the agreement.

On or about l 8. l l.2000, an application was filed by the Appellant D
herein before the 9th Senior Civil Judge, Alipore, purported to be in terms
of Order XII, Rule 6 of the Code of Civil Procedure (for short, CPC) for
dismissing the said suit for specific performance of contract on the premise
that by adopting the contention of the Appellant herein that the said agreements
for sale stood cancelled, they have admitted the truth of all her assertions
including the one that such cancellations of agreements were valid. The said E
suit for specific performance of contract was dismissed by the 9th Senior
Civil Judge, Alipore, in terms of Order XII Rule 6 of CPC purported fo be
on admission on the part of the Respondent Nos. l and 2. Being aggrieved
by and dissatisfied therewith, the Respondent Nos. l and 2 filed an application
for review of the said judgment and decree and by an order dated 15.7.2002, F
the learned 9th Senior Civil Judge allowed the said review petition which
was marked as Misc. Case No. l of 2002, in part, stating :

"Accordingly, I arrive at the conclusion that there has been an
error or commission while passing the impugned order No. 179 dated
20.12.200 l of T.S. 49/90 by omitting to spell out as to whether the G
earnest money should be refunded or forfeited. This is an error on the
face of the record, which can be rectified by passing necessary order
in this regard after hearing both sides. So review lies. Therefore, I
hold that the application under Order 47, Rule I of the C.P.C. is
liable to be allowed.
H
478 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Court fee is paid is correct.

Hence, it is

Ordered

That Misc. Case No. 1/02 is allowed on contest without costs.
B Necessary order will be passed in T.S. 49/90 regarding re-opening of
Order~ No. 179· dated 20.12.200 I of that suit in the light of this
judgment/order."

The Appetlant herein preferred an appeal thereagainst before: the High
C Court of Judicature at Calcutta which was inarked. as First Miscellaneous
Appeal No: 281 T of 2002: The Respondents also filed an appeal being First
Appeal No. 124 of 200J before the High Court allegedly suppressing the fact
that the decree, dismissing the Title Suit No. 49 of 1990 had been partly set
aside on the basis of the revie:w application filed by the Respondents herein.
The Respondents also filed cross objections in the said First Miscellaneous
D Appeal No. 2817 of 2002. Admittedly, all the three matters were directed to
be heard analogously. By reason of an order dated 31.3.2004, the High Court
allowed the· First Miscellaneous Appeal No. 2817 of 2002 filed by the
Appellant herein and' dismissed the Respondents' cross objection as not
pressed. However, by the impugned. judgment dated 22.9.2004, the First
E Appeal No. 124 of 2002 filed. by the Respondents herein was allowed:

EXECUTION PROCEEDING :

In the meanwhile, the Appellant herein had filed an Execution Petition
for executing.the decree passed in the said Title Suit No. 412 of 1977. The
F Respondent Nos. l and 2 applied for stay of execution thereof on the ground
that their suit for specific performance of contract had been restored as the
review application filed by them was in the meanwhile allowed in part. In
view of the fact that the undertaking was given by the Appellant herein, the
Executing Court gave liberty to the parties to approach this Court for obtaining
a clarification as to whether the Appellant's undertaking subsisted after
G dismissal ofTitle Suit No. 49 ofl990. On such an application having been
made, this Court· in Civil Appeal No. 9131 of 2003 by an order dated
18.11.2003 (sincr~ reported in (2004) I SCC 483) allowed the same, observing:

"An undertaking.. of this nature furthermore must be construed in
favour of the person giving such undertaking. It should not be stretched
H too far. A party giving an undertaking is bound thereby but by reason
REKHA MUKHERJEE v. ASHIS KUMAR DAS [SINHA . .J.] 479

thereof, the same cannot be given a meaning whereby the scope and A
extent thereof is enlarged.

Had the intention of the parties been that 'decision in the suit'
would mean a 'final decision' therein, which may include final
detennination of the dispute upto this Court, it could have been stated
so specifically. In our opinion, in such an event, a strained meaning B
will have to be put which was not the intention of the appellant. If
that was the intention of the appellant, the questio'l of this Court's
making observations to facilitate early disposal of the suit would lose
all relevance.
... The Title Suit is pending decision only for a limited purpose, C
namely, for refund of the earnest money. The substantive prayer of
the respondents for review of the judgment and decree passed by the
trial court, therefore, has not been accepted. The court has not granted
a decree for specific performance of the contract. The question of
eviction of the respondents in execution of the decree passed in Title D
Suit No 412 of 1977 had only a direct relationship with the right of
the· respondents to continue to possess the tenanted premises in
furtherance of their plea of part performance of the terms and
conditions of the agreement for sale. Such a right claimed by the
respondents herein to continue to possess the same on the basis of her
independent right in terms of Section 53-A of the Transfer of Property E
Act had been negatived by the court. The respondents cannot resist
their eviction pursuant to or in furtherance of the decree for eviction
passed against them in execution proceedings thereof."

THIRD PARTY CLAIM:
F
The Respondent Nos.3 and 4, it may be noticed at this juncture, had set
up a case a fresh agreement for sale by and between the parties herein after
the death of mother of the plaintiffs (Respondent. Nos. I and 2), Smt. Gouribala
Das, on 23. 9.1990 in the following terms :

"That thereafter the respondent No. I and 2 filed an application under G
Order VI Ru le 17 read with Section 151 of the CPC for amendment
of the plaint in their suit for specific performance/injunction i.e. Title
Suit No. 49 of 1990 on 2. l .1990. By the said application for
amendment, respondent No. 1 and 2 herein, the applicants proposed
to include the names of their wives as co-plaintiffs; because in the H
480 SUPREME COURT REPORTS (2005) 2 S.C.R.

A meantime, the mother of the plaintiff (respondent No. I and 2) Smt.
Gouribala Das died on 23.9.1990 and eventually thereafter whereupon
the petitioner herein upon fresh negotiation and after alleged
cancellation of the earlier agreements for sale, once again agreed to
sell the entire disputed suit premises in favour of all the respondents
herein, having 1/4th share each, and accordingly four number of draft
B deeds of sale were prepared, which were handed over to the petitioner
and her son, Mr. Santanu Mukherjee, Advocate Calcutta High Court
for approval and necessary submission before the Income Tax
Authorities for obtaining prior clearance as it was required at the
relevant time under the provisions for Income Tax Act...."
c Despite the same Respondent Nos. 3 and 4 filed application under
Order XXI Rules 95, 97 to 101 read with Section 47 of the Code of Civil
Procedure on the premise that they were not bound by the decree passed
against Respondent Nos. 1 and 2 and prayed for stay of the execution, but
the Executing Court did not grant any interim stay. The said.Misc. Case No.
D 52 of 2003 was also dismissed by an order dated 25.8.2004. Although the
Executing Court allowed the Appellant's application for issuance of a writ
for delivery of possession; but the same was not actually issued. As the
Appellant herein filed an application marked as CO No. 3229 of 2004 before
the Calcutta High Court for direction upon the Respondents herein for issuance
E of such a writ but by reason of the impugned order dated 14 .. 10.2004, the
said application was dismissed.

The Appellant is, thus; before us.

SUBMISSIONS :

F Mr. Santanu Mukherjee, learned counsel appearing on behalf of the
Appellant, in assailing the judgment and order dated 14.10.2004 in Civil
Appeal No. 39 of 2005, would submit that the High Court committed a
serious error in entertaining the Respondents' First Appeal inasmuch as at the
time of filing thereof, the original decree stood modified in terms of the order
G passed in the review petition. Reliance, in this connection, has been placed
on Gour Krishna Sarkar and Anr. v. Nilmadhab Saha and Ors., (1922)
XXXVI Cal.L.J.484. The learned counsel would contend that the High Court
also erred in entertaining the said appeal after passing of the said order dated
15.7.2002 on the premise that the Respondents could appeal in anticipation.
Reliance, in this behalf, has been placed on Garikapatti Veeraya v. N. Subbaiah
H Choi1dhury, [1957] SCR 488. Mr. Mukherjee would urge that as rights had
REKHA MUKl-IER.IEE v. ASHIS KUMAR DAS [SINHA, J.) 481

accrued to the Appellant in view of the dismissal of the review petition. the A
High Court could not have allowed the Respondents to withdraw the review
application; once the appeal was filed by the Appellant against the order
dated 15.7.2002 setting aside the decree passed in the suit for specific
performance of contract in part. It was submitted that the High Court even
could not have permitted the Respondents to withdraw their review application B
in view of the fact that the suit was restored for the limited purpose of
considering as to whether the earnest money paid by them should be refunded
or forfeited. Reliance, in this connection, has been placed on K.S. Bhoopathy
and Ors. v. Kokila and Ors., [2000] 3 SCR 1168. In any event, as the
Respondents have filed a cross objection in the said appeal filed by the
Appellant herein, the High Court erred in reversing the Trial Court's decree C
upon its purported revival on the Respondents' withdrawing their review
application although they did not prefer any appeal from it thereafter. Reliance
on the said proposition has been placed on Sushi/ Kumar Sen v. State of
Bihar, [1975] 3 SCR 942.

The learned counsel would contend that tiling of an application for D
grant of income tax clearance certificate would not give rise to a new agreement
and, thus, the High Court committed a manifest error in holding that the
Appellant is bound thereby. The learned counsel, in this connection, relied
upon Srimathi Indira v. Income Tax Officer, 150 l.T.R. 351 and Immudipattam
v. Periya, 28 I.A. 46. E
Mr. Mukherjee submitted that the judgment and order dated 20.12.2001
passed by the learned Trial Court dismissing the Respondents' suit for specific
performance of contract was correct as the Respondents herein adopted her
contention in the written objection filed in the suit that the agreements stood
validly cancelled. Such an admission according to Mr. Mukherjee, must be F
read as a whole and having regard to the fact that such admission on the part
of the Respondent made by adoption in one suit without any reservation was
admissible in evidence in the other suit.

. Mr. G.L. Sanghi, the learned senior counsel appearing on behalf of the
Respondents, on the other hand, would contend that the learned Trial Court G
having dismissed the suit for specific performance of contract, an appeal
thereagainst was maintainable in terms of Order 96 of CPC. The learned
counsel submitted that despite the order dated 15.7.2002 granting a limited
review as the suit for specific performance of contract stood dismissed, no
objection as regard the maintainability of the appeal could be raised by the H
482 SUPREME COURT REPORTS [2005) ·2 S.C.R.

A Appellant. ·Mr. ·Sanghi would urge that in any event the appeal became
maintainable after the review petitioner was permitted to be withdrawn.

The learned counsel argued that in view of the fact that the judgment
and order-passed by the learned trial judge 1Jurported to ,be ·in terms of Rule
XII 'Rule·6 of CPC·being per se bad in law, no te.chnicality should be .allowed
B to come .in the way of the Respondents' ·right to pursue the suit for specifi~.
perfonnance of.contract as.otherwise the same would.cause manifest injustice
to.them. The.learned counsel would further.urge.that keepiJ?g in view the fact
that this Court in its judgmentand order dated 18.11.2003 in Rekha Mukherjee
(supra) has:clearly:held that-the undertaking was operative till the decision
C .of the suit,jn·view.ofithe judgmenLand order.dated.22.9.2004 passed by the
High Court:in.Eirst J\-ppeal No. J24.of2003, .the suit for specific perfonnance
of contract .bei~g Title ,Suit No. 49 of 1990 having been revived, the
undertaking would :also :revive.

ISSUE:
D
The primal question which Jalls·for our consideration in these .appeals
is as to whether .the High Court ·was justified in entertaining the First ApP.eal
filed ·by ·the ·Respondents herein .against the original judgment and dec'ree
·passed in Title -Suit No .. 49 of 1990 for specific performance of contract.

E SCOPE OF REVIEW :
The suit .filed ~Y ·the Respondents for grant of specific performance of
contract was dismissed. The said .decree although was appealabie but in view
of the order dated 15:7:2002, the said decree:in its entirety ceased to operate.
Order XL VII Rule 1 CPC postulates ·filing of an application by a ·person
F considering himself aggrieved, .by .a decree or order from which.an appeal is
.allowed but from whiCh no appeal has been preferred, to file an application
if he desires to obtain a review from a decree passed against him. An appeal
during the pendency of the review petition was, therefore, not maintainab1e.
In .terms of Order XLVII Rule. 4, the Court may either reject or _grant an
G application for review. 1n case a review is rejected, the order would not be
appealable whereas an order .granting an application may be objected 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. Rule 8 of Order XL VII of
CPC postulates that when an application for review is granted,.a note thereof
shali'be made in the register and the court .may at once .re-hear the case or
H make such order in regard to the re-hearing as it thinks fit.
REKHA MUKHERJEE v. ASHIS KUMAR DAS [SINHA. J.] 483
In Hameed Joharan (Dead) and Ors. v. Abdul Salem (Dead) by LRs. A
And Ors., [200 I] 7 SCC 573 whereupon reliance has been placed by the
Respondents, this Court while interpreting the provisions of Article 136 of
the Limitation Act observed :

"34. Be it noted that the legislature cannot be subservient to any
personal whim or caprice. In any event, furnishing of engrossed stamp B
paper for the drawing up of the decree cannot but be ascribed to be
a ministerial act, which cannot possibly put under suspension a
legislative mandate. Since no conc;litions are attached to the decree
and the same has been passed declaring the shares of the parties
finally, the Court is not required to deal with the matter any further C
- what has to be done - has been done. The test thus should be - has
the Court left out something for being adjudicated at a later point of
time or is the decree contingent upon the happening of an event - i.e.
to say the Court by its own order postpones the enforceability of the
order - in the event of there being no postponement by a specific
order of the Court, there being a suspensio1;1 of the decree being D
unenforceable would not arise. As a matter of fact, the very definition
of decree in Section 2(2) of the Civil Procedure Code lends credence.
to the observations as above since the term is meant to be "conclusive
determination of the rights of the parties"."

In Ratansingh v. Vijaysingh and Ors., [2001] 1 SCC 469 it was held E
that in order that a decision should become a decree there must be an
adjudication in a suit wherein the rights of the parties as regard all or any of

--
'
the matters lo controversy in the suit must have been determined and such
determination must be conclusive in nature.

The said decisions are not applicable in the instant case. F

From a bare perusal of the order dated 15.7.2002 passed by the learned
trial judge in Misc. Case No. I of 2002, it would be evident that he had
arrived at a conclusion that there had been an error or omission had crept in
the judgment dated 20.12.200 I as he had omitted to spell out as to whether G
the earnest money should be refunded or forfeited. The learned Judge found
that there. was an error on the face of record which could be rectified by
passing the necessary order in that regard after hearing both the sides. He,
therefore, while upholding that the review petition was maintainable allowed
the said application under Order XLVII Rule I CPC. He had thereafter passed
an order restoring the Title Suit No. 49 of 1990 to its original file and number H
484 SUPREME COURT REPORTS [2005] 2 S.C.R.

A by order dated 15.7.2002.

In view of the aforementioned order, the original decree dated
20.12,200 l did not survive.

MAINTAINABILITY OF APPEAL :
B
An appeal preferred again~t the said .order dated is.7.2002 by the
Appellant herein was maintainable in terms of Order 47 Rule 7 CPC. However,
no cross objection was maintainable at the instance of the Respondents.

The Respondents before the High Court did not file any application for
C withdrawing the review petition. Had such an application beeri filed, the
Higl) Court would have applied its mind as regard existence of the grounds
therefor. Such application of mind on the part of the High Court was imperative
as in the meantime a third party interest was created.

In K.S. Bhoopathy (supra), this Court held :
D
"The provision in Order XXIII Rule 1 CPC is an exception to the
common law principle of non-suit.· Therefore on principle an
application by a plaintiff under sub-rule (3) cannot be treated on par
with an application by him in exercise of the absolute liberty given
to him under sub-rule 1. In the former it is actually a prayer for
E concession from the court after satisfying the court regarding existences
of the circumstances justifying the grant of such concession. No doubt,
the grant of leave envisaged in sub-rule (3) of Rule l is at the discretion
of the court but such discretion is to be exercised by the court with
caution and circumspection. The legislative policy in the matter of
F exercise of discretion is clear from the provisions of sub-rule (3) in
which two alternatives are provided; (1) where the court is satisfied
that a suit must fail by reason of some formal defect, and the other
where the court is satisfied that there are sufficient grounds for allowing
the plaintiff to institute a fresh suit for the subject-matter of a suit or
part of a claim. Clause (b) of sub-rule (3) contains the mandate to the
G court that it must be satisfied about the sufficiency of the grounds for
allowing the plaintiff to institute a fresh suit for the same claim or
part of the claim on the same cause of action. The court is to discharge
the duty mandated under the provision of the Code on taking into
consideration all relevant aspects of the matter including the desirability
H of permitting the party to start a fresh round of litigation on the same
REKHA MUKHERJEE v. ASHIS KUMAR DAS [SINHA . .I.] 485
cause of action. This becomes all the more important in a case where A
the application under Order XXlll Rule I is filed by the plaintiff at
the stage of appeal. Grant of leave in such a case would result in the
unsuccessful plaintiff to avoid the decree or decrees against him and
seek a fresh adjudication of the controversy on a clean slate. It may
also result in the contesting defendant losing the advantage of B
adjudication of the dispute by the court or courts below. Grant of
pem1ission for withdrawal of a suit with leave to file a fresh suit may
also result in annulment of a right vested in the defendant or even a
third party. The appellate/second appellate court should apply its mind
to the case with a view to ensure strict compliance with the conditions
prescribed in Order XXIII Rule 1(3) CPC for exercise of the C
discretionary power in permitting the suit with leave to file a fresh
suit on the same cause of action. Yet another reason in support of this
view is that withdrawal of a suit at the appellate/second appellate
stage results in wastage of public time of courts which is of
considerable importance in the present time in view of large
accumulation of cases in lower courts and inordinate delay in disposal D
of the cases."

Before the High Court, the cross objection filed by the Respondents
was not pressed. The appeal preferred by the Appellant herein was allowed.
It was, therefore, stricto sensu not a case where a prayer was made for E
withdrawing the application for review so as to render the decree wide open
to challenge in an appeal under Section 96 CPC. A Respondent may concede
that the appeal filed by the Appellant may be allowed or his cross-objections
may be dismissed but if he intends to withdraw his suit or review application
and that too at the appellate stage, he must make out proper grounds therfor
so as to enable the court to apply its own mind thereupon. Order 23 Rule I F
CPC confers a discretionary jurisdiction on the court. Although Order 23
Rule I ipso facto is not applicable to a review petition, the principles analogous
thereto would be, in terms whereof an order directing withdrawal of such a
suit or abandonm_ent of part of claim may be allowed only when the court is
satisfied that one or the other conditions specified in sub-rule (3) of Rule 1
are satisfied. In terms of the sub-rule (4) thereof, the plaintiff shall be liable G
for such cost as the court may award and shall be precluded from instituting
any fresh suit in respect of such subject matter or such part of the claim.

Such an application in the peculiar facts and circumstances of the case
even might not have been entertained by the High Court. H
486 SUPREME COURT REPORTS [2005] 2 S.C.R.

A In Sushi/ Kumar Sen (supra), Mathew J considered the effect ofallowing
an application for review of a decree holding that the same would amount to
vacating the decree passed, stating :

"2. It is well settled that the effect of allowing an application for
review of a decree is to vacate the decree passed. The decree that is
B subsequently passed on review,· whether it modifies, . reverses or
confinns the decree originally passed, is a new decree superseding
the original one (see Nibaran Chandra Sikdar v. Abdul Hakim, AIR
(1928) Cal 418, Kanhaiya Lal v. Baldeo Prasad, ILR (1906) 28 All
240, Brijbasi Lal v. Salig Ram, ILR (1912) 34 All 282 and Pyari
Mohan Kundu v. Kalu Khan, ILR (1917) 44 Cal IOI I : 41 IC 497).
c
3. The respondent did not file any appeal from the decree dated
August 18, 1961 awarding compensation for the land acquired at the
rate of Rs. 200 per katha. On the other hand, it sought for a review
of that decree and succeeded in getting the decree vacated. When it
filed Appeal No. 81 of 1962, before the High Court, it could not have
D
filed an appeal against the decree dated August 18, 1961 passed by
the Additional District Judge as at that time that decree had already
been superseded by the decree dated September 26, 1961 passed after
review, So the appeal filed by the respondent before the High Court
could only be an appeal against the decree passed after review. When
E the High Court came to the conclusion that the Additional District
Judge went wrong in allowing the review, it should have allowed the
cross appeal. Since no appeal was preferred by the respondent against
the decree passed on August 18, 1961, awarding compensation for
the land at the rate of Rs. 200 per katha, that decree became final.
The respondent made no attempt to file an appeal against that decree
F
when the High Court found that the,review was wrongly allowed on
the basis that the decree revived and came into life again."

Our attention has been drawn to the following regretful concurring
opi~ion of Krishna Iyer, J. by Mr. Sanghi :

G "The processual law so dominates in certain systems as to overpower
substantive rights and substantial justice. The humanist rule that
procedure should be the handmaid, not the mistress, of legal justice
compels consideration of vesting a residuary power in judges to. act
ex debito justiciae where the tragic sequel otherwise would be wholly
H inequitable. In the present case, almost every step a reasonable litigant
REKHA MUKHERJEE v. ASHIS KUMAR DAS [SINHA. J.] 487

could take was taken by the State to challenge the extraordinary A
increase in the rate of compensation awarded by the civil court. And,
by hindsight, one finds that the very success in the review application
and at the appellate stage has proved a disaster to the party May be,
Government might have successfully attacked the increase awarded
in appeal, producing the additional evidence there. But maybes have B
no place in the merciless consequence of vital procedural flaws ... "

but this Court is bound by the ratio decidendi of a decision and not mere
observations.

rt is interesting to note that although the learned judge hoped that the
Parliament would consider the wisdom of making the judge, the ultimate c
guardian of justice by a comprehensive, though guardedly worded, provisions
where the hindrance to rightful relief relates to infirmities, even serious
sounding in procedural law but the Parliament has failed to respond thereto.

The doctrine of eclipse has no application in a case of this nature. An D
appeal preferred in tenns of Section 96 CPC must confonn 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 E
review application before the trial court itself. Having filed a review application
on legal advice and having succeeded therein in part, it was not open to it to
prefer an appeal against the entire decree dated 20.12.200 I 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 F
granted. In a suit for specific perfonnance 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.

The right of review is a statutory right. Such right can be invoked if the G
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.
H
488 SUPREME COURT REPORTS [2005) 2 S.C.R.

A In Garikapatti Veeraya (supra), this Court held :

"Considering the question on principle, an appe~I is a p~oceeding
by which the correctness of the decision of an infedo_r 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
B aggrieved is given, and i~ sounds praradoxical to say that it arises
even before judgment in the case is pronounced .... " :- ·,. · ·

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 re-opened in part• or in its
C 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.
D We are, therefore, ofthe 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 itis their own creation.
·· ·· This Court despite sympathy, as was in the case of Sushi/ KumarJain{supra)
cannot hold in their favour ignoring the binding preced~nts. . .·
E
The Respondents herein cannot take advantage of their own mistake.
They had furthermore been taking inconsistent and contradictory stands. They
had claimed possession of the suit premises as a tenant in furtherance ofa
part performance of contract in terms of Section 53-A of the Transfer of
Property Act and also the title having vested in the State of West Bengal in
F terms of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981.

For the views we have taken; it is not necessary for us to go into the
larger question as to whether the suit itself could have been dismissed in
terms of Order 12, Rule 6 of the CPC or not.

G EXECUTION CASE :
In view of the aforementioned findings, the decree passed in Title Suit
No. 49 of 1990 having regard to our decision in Civil Appeal No. 9131 of
2003 reported in [2004] I SCC 483, the decree has become enforceable. The
submission of Mr. Sanghi to the effect that the undertaking given by the
H
REKHA MUKHERJEE v. ASHIS KUMAR DAS [SINHA. J.) 489

Respondents has revived is stated to be rejected. The undertaking given by A
the Appellant is analogous to an interlocutory injunction restraining her from
executing the decree till the Respondents' suit for specific performance was
decided by the trial court as this Court held that the said undertaking cannot
be revived after the party giving it has been released therefrom [See Cutler
v. Wandsworth Stadium ltd., [1945] I All E.R. 103]
B
CONCLUSION :

For the reasons aforementioned, the impugned judgments cannot be
sustained which are set aside accordingly. The appeals are allowed. However,
in the facts and circumstance of the case, there shall be no order as to costs. C
S.K.S. Appeals allowed.

l
!.'

-