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2023 (9) TMI 1432 - SC - Indian LawsMaintainability of revision - Entitlement to ownership and possession of the entire second Schedule property or only a one- sixth share therein - gift-deed dated 24.04.1982, was fraudulently obtained from Fathima Beevi and never acted upon or not - sale-deed dated 14.11.1990, executed by Fathima Beevi in favour of Plaintiff is valid or not - property described in the second Schedule belonged to Fathima Beevi on the basis of a Hiba executed by her father or not. Whether a revision Under Section 115 of the Code of Civil Procedure is maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in a civil suit? HELD 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. 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. In the instant case, the trial court, which had jurisdiction to allow or dismiss the review application, dismissed the review application on merits. If it had granted the review, the aggrieved party would have had a right to file an appeal Under Order XLIII Rule 1(w) read with Order XLVII Rule 7 of the Code of Civil Procedure. And if it had allowed the review and simultaneously altered/modified/reversed the decree, the aggrieved party would have had a right to file an appeal against the said decree. But, if the revisional court does the same, as has been done by the High Court while passing the impugned order, an anomalous situation would arise - if the revisional court's order is allowed to stand, owing to modification of the decree by the revisional court, to which in normal course an appeal would lie, the right of an appeal to the aggrieved party would get seriously prejudiced. Where an appealable decree has been passed in a suit, no revision should be entertained Under Section 115 of the Code of Civil Procedure against an order rejecting on merits a review of that decree. 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 and if, in the meantime, the appeal is rendered barred by time, the time spent in diligently pursuing the review application can be condoned by the Court to which an appeal is filed. The revision of the Respondent against rejection of her application for review of an appealable decree ought not to have been entertained by the High Court. The impugned judgment and order of the High Court is set aside - The appeal is, therefore, allowed.
Issues Involved:
1. Whether the Plaintiff is entitled to ownership and possession of the entire second Schedule property or only a one-sixth share therein? 2. Whether the gift-deed, dated 24.04.1982, was fraudulently obtained from Fathima Beevi and never acted upon? 3. Whether the sale-deed dated 14.11.1990, executed by Fathima Beevi in favour of Plaintiff, is valid? 4. Whether the property described in the second Schedule belonged to Fathima Beevi on the basis of a Hiba executed by her father? 5. Whether a revision under Section 115 of the Code of Civil Procedure is maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in a civil suit? Summary: Issue 1: Ownership and Possession The trial court decreed that the Plaintiff is entitled to a one-sixth share in the second Schedule property, rejecting the claim for exclusive ownership. The High Court, however, modified the decree, declaring the Plaintiff as the absolute owner of the entire property. Issue 2: Validity of the Gift-Deed The trial court found the gift-deed dated 24.04.1982, executed by Fathima Beevi in favor of Khaja Mohideen, to be invalid. This decision was upheld by the High Court, which also found that the gift-deed was obtained by exercising undue influence and coercion. Issue 3: Validity of the Sale-Deed The trial court held the sale-deed dated 14.11.1990, executed by Fathima Beevi in favor of the Plaintiff, to be valid. This finding was not contested and was implicitly upheld by the High Court. Issue 4: Ownership Based on Hiba The trial court determined that the property described in the second Schedule belonged to Fathima Beevi based on a Hiba executed by her father. This finding was not explicitly contested in the appeal. Issue 5: Maintainability of Revision Under Section 115 CPC The Supreme Court held that a revision under Section 115 of the CPC is not maintainable against an order rejecting on merits an application for review of an appealable decree. The proper remedy is to file an appeal against the decree itself, with the possibility of condoning the delay if the review application was diligently pursued. The High Court's decision to entertain the revision and modify the trial court's decree was found to be erroneous. The Supreme Court set aside the High Court's judgment and order, allowing the appeal while preserving the Plaintiff's right to file an appeal against the trial court's decree along with an application to condone any delay.
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