LexREKHA MUKHERJEE versus ASHIS KUMAR DAS AND ORS.
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-- 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 c Section 47, O.XLVII R.lCPC, 0.41 : 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 of suit 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 E to prefer an appeal against the entire decree-High Court was wrong in 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 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 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 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 E 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 j j -... - 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
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