2004 (3) TMI 809 - HC - Indian Laws

Summary

Issues:
1. Whether a review application and an appeal can be pursued simultaneously out of the same judgment.
2. The effect of allowing a review application on subsequent appeal proceedings.
3. The interaction between Order 47 of the Code of Civil Procedure (CPC) and the right to appeal.

Analysis:
1. The judgment addresses the issue of pursuing a review application and an appeal simultaneously from the same judgment. The court highlights the potential conflict and confusion that may arise if parallel proceedings of review and appeal are pursued. It refers to Section 114 and Order 47, Rule 1 of the CPC, emphasizing that a review application can be made if no appeal has been preferred. The court deliberates on the sequence of events concerning the review application and the appeal, emphasizing the importance of maintaining clarity and avoiding overlapping proceedings.

2. The judgment delves into the consequences of allowing a review application on subsequent appeal proceedings. It distinguishes between the stages of review process, particularly focusing on the third stage where the case is re-heard on merit. The court emphasizes that upon allowing a review application, the original decree stands recalled, and the suit or appeal is revived for re-hearing. This distinction between the second and third stages of the review process is deemed crucial to prevent confusion and ensure the parties' rights are upheld.

3. The court clarifies the interaction between Order 47 of the CPC and the right to appeal. It asserts that once a review is allowed, part of the decree becomes open for re-hearing. The judgment emphasizes that pursuing both review and appeal simultaneously is not permissible, and the party must choose one remedy over the other. The court highlights the provisions of Order 47, stressing that even if an appeal is filed during the pendency of a review, the party must elect to pursue either the review or the appeal. In the case at hand, the party opts to proceed with the appeal, leading to the dismissal of the review application.

In conclusion, the judgment provides a detailed analysis of the interplay between review applications and appeals, emphasizing the procedural requirements and the need to avoid conflicting proceedings to ensure the proper administration of justice.