9911796707
TMI Blog2004 (3) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed, the appeal could not be maintained since on passing of the order allowing the review of the judgment to the extent of which review is allowed, become open for re-hearing. There would be conflict and confusion if parallel proceedings of review and appeal out of the same judgment are pursued. Section 114 and Order 47, Rule 1 of the Code of Civil Procedure (CPC) prescribes that if any person considers himself aggrieved of by a decree or order from which no appeal has been preferred, may apply for review of such decree. In this case, admittedly, review was prayed for and allowed before the appeal was filed which satisfy the requirement for review. But at the same time the appeal having not been preferred before the review was allowed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier decree or order stands recalled and the suit or appeal revives and the matter is re-heard in the third stage. This rehearing is of the suit or the appeal was revived is something distinct from the original decree or order under review. An order passed under Rule 8 is a decree or order passed in the original suit or the appeal. It is subject to an appeal under Section 96 or 100 or 104, CPC or under the Letters Patent or such other law, as the case may be. Even if after the third stage the old decree or order is repeated, even then it would be a fresh order or decree passed in the suit or the appeal after re-hearing. When the review application is allowed, the original decree or order in law stands vacated and the suit or the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not press the cross-objection filed by him, which, however, according to Mr. Mukherjee, is not maintainable since it has been preferred only against part of the decree. Relying on Order 41, Rule 22, he submits that cross-objection lies against the decree not against a finding. The adverse finding may entitle the cross-objector to defend the cross-objection against the decree. He relied on Jowad Hussain v. Gendan Singh (1926) 53 Ind App 197 : (AIR 1926 PC 93) where it was so held. It is not necessary to go into this question since Mr. Roychowdhury is opting not to press this cross-objection. The cross-objection is dismissed for non-prosecution. 5. In view of the above, the FMA No. 2817 of 2002 stands allowed and the order dated 9t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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