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2023 SCC OnLine SC 1226

In the Supreme Court of India

(BEFORE P.S. NARASIMHA AND MANOJ MISRA, JJ.)

Rahimal Bathu and Others … Appellants;

Versus
Ashiyal Beevi … Respondent.
Civil Appeal No. of 2023 (Arising out of SLP (C) No. 8428 of 2018)
Decided on September 26, 2023
Advocates who appeared in this case :
For Petitioner(s) Mrs. Naresh Bakshi, AOR
Ms. N. Annapoorani, AOR
For Respondent(s) Mr. S. Rajappa, AOR
Mr. V Prabhakar, Adv.
Ms. Jyoti Parashar, Adv.
Mr. NJ Ramchandar, Adv.
Mr. R Gowrishankar, Adv.
The Judgment of the Court was delivered by
MANOJ MISRA, J.:— Leave granted.
2. This is defendants' appeal against the order of the Madurai Bench
of Madras High Court (in short, ‘the High Court’), dated 12.09.2017,
passed in C.R.P. (NPD) (MD) No. 1342 of 2007, by which the revision of
the plaintiff-respondent was allowed, the order dated 20.12.2006
passed by the court of First Additional Sub Court, Tirunelveli in I.A. No.
207 of 2001 in O.S. No. 276 of 1992 was set aside, I.A. No. 207 of
2001 was allowed and the decree dated 21.11.1996 passed in O.S. No.
276 of 1992 was modified.
Factual Matrix
3. The respondent instituted an Original Suit (in short, “O.S.”) No.
276 of 1992 for declaring her as the exclusive owner of the property
described in the second schedule of the plaint. Additionally, possession
of the said property was sought. In the alternative, it was prayed that,
if the court concludes that she is not the exclusive owner of the
property, her share therein be declared one-sixth and the same be
partitioned accordingly.
4. The plaint case is that,— the suit property was of plaintiff's
grandmother Fathima Beevi, which the plaintiff purchased from her
vide sale-deed dated 14.11.1990; the first defendant (i.e., the
appellant no. 1) is the daughter-in-law of Fathima Beevi whereas
defendant nos. 2 to 6 are her children; taking advantage of staying
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with Fathima Beevi, the husband of the first defendant, namely, Khaja
Mohideen, got a gift-deed executed in his favour from Fathima Beevi on
24.04.1982; the said gift-deed was obtained by exercising undue
influence and coercion and was never acted upon and is therefore a
nullity. In the alternative, it was pleaded that, if the gift-deed is
accepted, since the husband of the first defendant died on 31.05.1988
(i.e., before the death of his mother Fathima Beevi), Fathima Beevi had
one-sixth share in the property which would come to the plaintiff under
the sale-deed dated 14.11.1990.
5. The appellants, who were defendants in the suit, contested the
suit on various grounds. On the pleadings of the parties, inter alia,
following issues came up for consideration:
(i) Whether the plaintiff is entitled to ownership and possession of
the entire second schedule property or only a one-sixth share
therein?
(ii) Whether the gift-deed, dated 24.04.1982, was fraudulently
obtained from Fathima Beevi and never acted upon?
(iii) Whether the sale-deed dated 14.11.1990, executed by Fathima
Beevi in favour of plaintiff, valid?
(iv) Whether the property described in the second schedule belonged
to Fathima Beevi on the basis of a Hiba executed by her father?
6. The trial court held that,— the property concerned was gifted to
Fathima Beevi by her father; the gift-deed dated 24.04.1982 executed
by Fathima Beevi in favour of Kaja Mohideen (first defendant's
husband) is invalid; the sale-deed dated 14.11.1990 in favour of the
plaintiff is valid; and that the plaintiff is entitled to one-sixth share in
the second schedule property. In terms thereof, the suit was decreed
for one-sixth share in the suit property.
7. As the trial court found the gift-deed dated 24.04.1982 invalid
and sale-deed dated 14.11.1990 valid, the plaintiff filed a review
application (I.A. No. 207 of 2001), inter alia, claiming that the suit
ought to have been decreed in its entirety and not for mere one-sixth
share. This review application was rejected on merits by the trial court
vide order dated 20.12.2006.
8. Aggrieved by rejection of the review application, the plaintiff (i.e.
the respondent herein) filed civil revision before the High Court under
Section 115 of the Civil Procedure Code, 1908 (in short, ‘the CPC’).
9. The High Court entertained the revision and, by the impugned
judgment and order dated 12.09.2017, allowed it. The High Court not
only set aside the order of the trial court rejecting I.A. No. 207 of 2001
but it also allowed the review application and modified the decree dated
21.11.1996 in terms prayed for in the review application. In
consequence, the decree of the trial court, which was in respect of one-
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sixth share only in the second schedule property, was extended to the
whole of it. The operative portion of the impugned order is extracted
below:
“…consequently, the judgment and decree, dated 21.11.1996,
passed in O.S. No. 276 of 1992, on the file of the Ist Additional Sub
Court, Tirunelveli, are modified to the effect that the plaintiff is
entitled for declaration that the second schedule property belongs to
her absolutely and consequently, she is entitled to recover the
possession of the same from the defendants…”
10. Aggrieved by the judgment and order of the High Court, the
defendants are in appeal.
11. We have heard Mr. A. Sirajudeen, learned senior counsel for the
appellants and Mr. V. Prabhakar, learned counsel, for the respondents.
Submissions on behalf of the appellants
12. Learned counsel for the appellants submitted:
(i) The High Court exceeded its jurisdiction by entertaining a revision
against an order which declined review of an appealable decree;
(ii) Assuming that the revision was maintainable, High Court could
not on its own modify trial court's decree which was not the
subject matter of challenge before the High Court;
(iii) If the trial court had committed any jurisdictional error in
rejecting the review application, the High Court should have
remitted the matter back to the trial court for a fresh
consideration of the review application;
(iv) If the High Court's order is allowed to stand, defendants' right of
an appeal under Section 96 of the CPC would get affected as the
trial court's decree would get merged in the decree modified by
the High Court.
13. On the strength of the aforesaid submissions, the learned
counsel for the appellants prayed that the judgment and order of the
High Court be set aside and if the plaintiff-respondent has any
grievance against the judgment and decree of the trial court, she may
take recourse to the remedy of an appeal under Section 96 of the CPC.
Submissions on behalf of the respondent
14. Per contra, the learned counsel for the respondents submitted:
(i) Against an order rejecting a review application, no appeal lies
(See Order XLVII, Rule 7(1) of the CPC). The term “Case”, used in
Section 115 of the CPC, is a word of comprehensive import and
includes civil proceedings other than the suit, therefore, there can
be no legal bar in entertaining a revision against rejection of a
review application;
(ii) The Explanation to Section 115 of the CPC makes it clear that
“any case which has been decided” includes any order made, or
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any order deciding an issue, in the course of a suit or other

proceeding, which means that the expression “any case which has
been decided” is all inclusive and not exclusive;
(iii) The revisional powers vested in the High Court under Section
115 of the CPC are wide enough to correct jurisdictional errors and
while correcting such jurisdictional errors, the High Court can pass
such orders as may be required to serve the ends of justice;
(iv) The concluding part of trial court's judgment on the basis
whereof decree was drawn is contradictory to the body of the
judgment, inasmuch as, if the gift deed dated 24.04.1982 is
invalid and the sale-deed in favour of the plaintiff is valid, the
plaintiff would be entitled to exclusive ownership and possession
of the property in dispute. Thus, there was an error apparent on
the face of the record which ought to have been corrected in the
review. However, since it was not corrected, the High Court in
exercise of its powers under Section 115 of the CPC was justified
in modifying the decree.
15. To buttress his submission that the High Court justifiably
exercised revisional power, the learned counsel for the respondent
relied on several decisions enumerated and discussed below:
(i) Major S.S. Khanna v. Brig. F.J. Dillon1; which we shall deal with
at a later stage.
(ii) Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat2.
This is a decision which lays down the conditions in which
revisional powers could be exercised and clarifies that if there are
two modes of invoking the jurisdiction of the High Court and one
of them is chosen and exhausted it would not be proper and
sound exercise of discretion to grant relief in the other set of
proceedings in respect of the same order of the subordinate Court.
It holds that though Section 115 of the CPC circumscribes the
limits of that jurisdiction but the jurisdiction exercised thereunder
is a part of the general appellate jurisdiction of the High Court as
a superior Court. Therefore, the principle of merger of orders of
inferior courts in those of superior Courts would be applicable.
3
(iii) Vinod Kumar Arora v. Smt. Surjit Kaur . This is a decision which
deals with the general principles governing exercise of revisional
powers. It does not deal specifically with any of the issues arising
in this appeal.
4
(iv) Srinivasiah v. Sree Balaji Krishna Hardware Store . In this case
it was held that where a Court proceeds to decide a case on an
incorrect assumption regarding a fact, there would be ample
justification to exercise the review jurisdiction.
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5
(v) Kalpataru Agroforest Enterprises v. Union of India . Herein, this
Court found Rule 32 of the Railway Claims Tribunal (Procedure)
Rules, 1989, to the extent it restricted the scope of power of
review vested under Section 18(3)(f) of the Railways Claims
Tribunal Act, 1987 to non-appealable orders, violative of statutory
provision and, therefore, bad.
(vi) The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Arijit
6
Prasad Tarway . In this case it was held that the High Court had
no jurisdiction to interfere with the order of the first appellate
court while exercising power under Section of 115 of the CPC. It
was observed that the order of the first appellate court may be
right or wrong; may be in accordance with law or may not be in
accordance with law; but it had jurisdiction to make that order,
therefore, the High Court could not have invoked its jurisdiction
under Section 115 of the CPC.
(vii) Prem Bakshi v. Dharam Dev7. In this case it was held that an
order by trial court holding it has no jurisdiction to proceed, or
that suit is barred by limitation, would amount to a final decision
and as such revisable.
(viii) Rajender Singh v. Lt. Governor; Andaman & Nocobar Islands8.
In this case it was observed that the power of judicial review of its
own order inheres in every court of plenary jurisdiction to prevent
miscarriage of justice; and courts should not hesitate to review
their own earlier order when there exists an error on the face of
the record and the interest of justice so demands.
(ix) Punjab National Bank v. Shri U.P. Mehra9. In this case the order
of which review was sought had the effect of closing defendant's
evidence. The review was dismissed. Challenging the aforesaid
two orders, revision under Section 115 of the CPC was filed which
was dismissed upon finding that there was no jurisdictional flaw
in the order of the trial court.
10
(x) B. Subbarao v. Yellala Maram Satyanarayana . In this case the
plaintiff sought permission to sue as a pauper. On rejection of his
prayer, he filed a review application. Against rejection of that
review application, he filed a revision under Section 115 of the
CPC. While rejecting the objection that revision is not
maintainable against an order rejecting a review application, the
High Court held that as there is no right of an appeal against
rejection of a review application, the jurisdiction under Section
115 of the CPC can be invoked.
11
(xi) Arya Insurance Co. Ltd. v. Lala Channoolal . In this case it was
held by the Allahabad High Court that the CPC does not provide
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for an appeal against refusal of a review though an appeal under

Order XLIII, Rule 1(w) from an order granting a review is
maintainable. However, an order rejecting the review may be
brought into question in a revision.
[Note : In this case the order of which review was sought was
not a decree but an order striking off defence and directing the
suit to proceed ex parte.]
12
(xii) Thakur Singh v. Bhaironlal . In this case an ex parte decree
was passed in a suit. Instead of filing an appeal or an application
to set aside the ex parte decree a review was filed, which was
rejected. Against rejection of the review, a revision was filed.
Although the revision was dismissed but, while deciding the
same, preliminary objection as to its maintainability was
overruled.
DISCUSSION
16. We have considered the rival submissions and have perused the
record.
17. The short question which arises for our consideration in this
appeal is:
Whether a revision under Section 115 of the CPC 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?
18. To appropriately address the aforesaid issue, it would be
apposite to have an overview of the relevant provisions of the CPC. An
application seeking a review of a judgment and decree passed in a civil
suit is maintainable under Order XLVII Rule 1 of the CPC. Rule 4 of
Order XLVII provides that where it appears to the Court that there is
not sufficient ground for a review, it shall reject the application. Sub
rule (2) of Rule 4 provides that where the Court is of opinion that the
application for review should be granted, it shall grant the same. Rule 7
of Order XLVII provides that an order of the Court rejecting the
application shall not be appealable; but an order granting an
application may be objected to 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. In fact, Order XLIII Rule 1(w) supplements
Order XLVII Rule 7 by providing that an appeal would lie against an
Order under Rule 4(2) of Order XLVII granting an application for
review. Rule 9 of Order XLVII provides that no application to review an
order made on an application for a review or a decree or order passed or
made on a review shall be entertained.
19. From the provisions of Order XLVII of the CPC it is clear that an
order rejecting a review application is not appealable.
20. In Major S.S. Khanna (supra), in a civil suit an issue was framed
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as to whether the suit was maintainable. The said issue was tried as a
preliminary issue. The trial court held the suit not maintainable. Against
the order of the trial court, a revision was preferred before the High
Court under Section 115 of the CPC. The High Court of Punjab set aside
the order and directed that the suit shall be heard and disposed of
according to law. Aggrieved by the order of the High Court, a Special
Leave Petition was filed before this Court. Before this Court it was
urged : (a) that the order under challenge before the High Court did
not amount to “a case which has been decided” within the meaning of
Section 115 of the CPC; (b) that the decree which may follow would be
subject to an appeal to the High Court therefore, the power of the High
Court was, by the express terms of Section 115 of the CPC, excluded;
and (c) that the order did not fall within any of the three clauses (a),
(b) and (c) of Section 115 of the Code. In that context, this Court
observed:
“6……………The validity of the argument turns upon the true
meaning of Section 115 of the Code of Civil Procedure, which
provides:
“The High Court may call for the record of any case which has
been decided by any Court subordinate to such High Court and in
which no appeal lies thereto, and if such subordinate Court
appears—
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court may make such order in
the case as it thinks fit.”
The section consists of two parts, the first prescribes the
conditions in which jurisdiction of the High Court arises i.e. there is a
case decided by a subordinate Court in which no appeal lies to the
High Court, the second sets out the circumstances in which the
jurisdiction maybe exercised. But the power of the High Court is
exercisable in respect of “any case which has been decided”. The
expression “case” is not defined in, the Code, nor in the General
Clauses Act. It is undoubtedly not restricted to a litigation in the
nature of a suit in a civil court : Balakrishna Udayar v. Vasudeva
Aiyar [(1916-17) 44 IA 261]; it includes a proceeding in a civil court
in which the jurisdiction of the Court is invoked for the determination
of some claim or right legally enforceable. On the question whether
an order of a Court which does not finally dispose of the suit or
proceeding amounts to a “case which has been decided”, there has
arisen a serious conflict of opinion in the High Courts in India and
the question has not been directly considered by this Court. One
view which is accepted by a majority of the High Courts is that the
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expression “case” includes an interlocutory proceeding relating to the

rights and obligations of the parties, and the expression record of
any case includes so much of the proceeding as relates to the order
disposing of the interlocutory proceeding. The High Court has
therefore power to rectify an order of a Subordinate Court at any
stage of a suit or proceeding even if there be another remedy open
to the party aggrieved i.e. by reserving his right to file an appeal
against the ultimate decision, and making the illegality in the order a
ground of that appeal. The other view is that the expression “case”
does not include an issue or a part of a suit or proceeding and
therefore the order on an issue or a part of a suit or proceeding is not
a “case which has been decided”, and the High Court has no power
in exercise of its revisional jurisdiction to correct an error in an
interlocutory order.
7. An analysis of the cases decided by the High Courts — their
number is legion — would serve no useful purpose. In every High
Court from time to time opinion has fluctuated. The meaning of the
expression “case” must be sought in the nature of the jurisdiction
conferred by Section 115, and the purpose for which the High Courts
were invested with it.
xxx xxx xxx
10. The expression “case” is a word of comprehensive import; it
Includes civil proceedings other than suits, and is not restricted by
anything contained in the section to the entirety of the proceeding in
a civil court. To interpret the expression “case” as an entire
proceeding only and not a part of a proceeding would be to impose a
restriction upon the exercise of powers of superintendence which the
jurisdiction to issue writs, and the supervisory jurisdiction are not
subject, and may result in certain cases in denying relief to an
aggrieved litigant where it is most needed, and may result in the
perpetration of gross injustice.
11. It may be observed that the majority view of the High Court
of Allahabad in Buddhulal v. Mewa Ram [ILR 43 All 564] founded
upon the supposition that even though the word “case” has a wide
signification the jurisdiction of the High Court can only be invoked
from an order in a suit, where the suit and not a part of it is decided,
proceeded upon the fallacy that because the expression “case”
includes a suit, in defining the limits of the jurisdiction conferred
upon the High Court the expression “suit” should be substituted in
the section, when the order sought to be revised is an order passed
in a suit. The expression “case” includes a suit, but in ascertaining
the limits of the jurisdiction of the High Court, there would be no
warrant for equating it with a suit alone.
(Emphasis supplied)
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21. After observing as above, in paragraph No. 12, it was observed:

“12. That is not to say that the High Court is obliged to exercise
its jurisdiction when a case is decided by a subordinate Court and
the conditions in clauses (a), (b), or (c) are satisfied. Exercise of the
jurisdiction is discretionary : the High Court is not bound to interfere
merely because the conditions are satisfied. The interlocutory
character of the order, the existence of another remedy to an
aggrieved party by way of an appeal, from the ultimate order or
decree in the proceeding or by a suit, and the general equities of the
case being served by the order made are all matters to be taken into
account in considering whether the High Court, even in cases where
the conditions which attract the jurisdiction exist, should exercise its
jurisdiction.”
(Emphasis supplied)
22. The law laid down in Major S.S. Khanna (supra) by a three-
Judge Bench of this Court still holds the field. Thus, it is settled that
the expression “case” used in Section 115 of the CPC is of wide
amplitude. It includes civil proceedings other than suits, and is not
restricted to the entirety of the proceeding in a civil court. In that
sense, rejection of a review application would also be a case which has
been decided and, therefore, it could be canvassed that as no appeal
lies against such an order, the same is amenable to the revisional
jurisdiction under Section 115 of the CPC. However, at the same time,
it cannot be overlooked that exercise of revisional powers cannot be
claimed as of right. It is a discretionary power. The revisional Court is
not bound to interfere merely because any of the three conditions, as
laid down in Section 115 of the CPC for exercise of such power, is
satisfied. Rather, the Court, exercising revisional powers, must bear in
mind, inter alia, whether it would be appropriate to exercise such power
considering the interlocutory character of the order, the existence of
another remedy to an aggrieved party by way of an appeal, from the
ultimate order or decree in the proceeding, or by a suit, and the general
equities of the case.
23. In Major S.S. Khanna (supra) the order impugned before the
revisional court was an order by which the trial court while deciding a
preliminary issue held the suit as not maintainable though, the suit
itself was not decided. Therefore, there was no appealable decree in
existence at the time when the revisional jurisdiction was invoked.
Whereas, in the case at hand there was already an appealable decree in
existence when the revisional powers were invoked. In fact, the review
application sought review of an appealable decree and not just a mere
order that might have been passed by the court in the course of a suit.
The revision was filed against rejection of that review application. At
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that stage, when the review application was rejected, the aggrieved
party had a right to question the decree of the trial court in an appeal.
In these circumstances, the question that needs determination is,
whether, against an order of the Subordinate Court rejecting on merits
an application for review of an appealable decree, a revision be
entertained.
13
24. In DSR Steel Pvt. Ltd. v. State of Rajasthan , this Court had the
occasion to examine different situations which may arise in relation to
orders passed in a review petition. While dealing with those situations,
it was observed:
“25.1. One of the situations could be where the review application
is allowed, the decree or order passed by the court or tribunal is
vacated and the appeal/proceedings in which the same is made are
reheard and a fresh decree or order passed in the same. It is
manifest that in such a situation the subsequent decree alone is
appealable not because it is an order in review but because it is a
decree that is passed in a proceeding after the earlier decree passed
in the very same proceedings has been vacated by the court hearing
the review petition.
25.2. The second situation that one can conceive of is where a
court or tribunal makes an order in a review petition by which the
review petition 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.
25.3. The third situation with which we are concerned in the
instant case is where the revision petition is filed before the Tribunal
but the Tribunal refuses to interfere with the decree or order earlier
made. It simply dismisses the review petition. The decree in such a
case suffers neither any reversal nor an alteration or modification. It
is an order by which the review petition is dismissed thereby
affirming the decree or order. In such a contingency 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 pursing 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
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petition.”
(Emphasis supplied)
25. What is clear from the above observations is, 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.
26. 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. Further, there may be a case where
a person is aggrieved by a finding of the trial court on any issue, even
though the trial court's decree may be in its favour. In that scenario, if
there is an appeal by a party aggrieved by the decree, that person
would have a right to take an objection against the adverse finding with
the aid of the provisions of Order XLI, Rule 22 of the CPC, but in the
event of there being no appeal against the decree, such a person would
lose its right to take an objection, under Order XLI, Rule 22 of the CPC,
against that adverse finding.
27. No doubt revisional powers may be available on limited grounds,
primarily to correct jurisdictional errors, but still it is a part of the
general appellate jurisdiction of the High Court as a superior court. In
Shankar Ramchandra (supra), this Court observed:
“6. Now when the aid of the High Court is invoked on the
revisional side it is done because it is a superior court and it can
interfere for the purpose of rectifying the error of the court below.
Section 115 of the Code of Civil Procedure circumscribes the limits of
that jurisdiction but the jurisdiction which is being exercised is a
part of the general appellate jurisdiction of the High Court as a
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superior court. It is only one of the modes of exercising power

conferred by the statute; basically and fundamentally it is the
appellate jurisdiction of the High Court which is being invoked and
exercised in a wider and larger sense. We do not, therefore, consider
that the principle of merger of orders of inferior courts in those of
superior Courts would be affected or would become inapplicable by
making a distinction between a petition for revision and an appeal.”
(Emphasis supplied)
28. 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 CPC. 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. The decree passed by the trial court
would stand modified by the High Court. Therefore, if the defendant(s)
against whom the decree is passed were to challenge the same, they
would be at a disadvantage on account of the merger. Whereas, from
the stand point of the plaintiff-respondent, even if we assume that the
trial court's decree is inconsistent with its finding on the validity of the
gift in favour of Khaja Mohideen, she can challenge the same in an
appeal against the decree even after rejection of the review application.
In the event of such an appeal by the plaintiff, the defendant(s), even
if they had themselves not filed an appeal against the trial court's
decree, would have a right to take objection to the adverse finding(s)
under Order XLI Rule 22 of the CPC. However, 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.
29. For all the reasons above, we are of the considered view that
where an appealable decree has been passed in a suit, no revision
should be entertained under Section 115 of the CPC 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.
30. In view of our conclusion above, the revision of the respondent
against rejection of her application for review of an appealable decree
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ought not to have been entertained by the High Court. The appeal is,
therefore, allowed. The impugned judgment and order of the High Court
is set aside.
31. However, this will not affect the right of the plaintiff/respondent
to file an appeal against the decree of the trial court along with an
application to condone the delay, if any, in filing the appeal. Parties to
bear their own costs.
———
1
AIR 1964 SC 497

2
(1969) 2 SCC 74

3
(1987) 3 SCC 711

4
(1998) 8 SCC 312 : AIR 1999 SC 462

5
(2002) 3 SCC 692

6
(1972) 3 SCC 195

7
(2002) 2 SCC 2

8
(2005) 13 SCC 289

9
AIR 2004 Del 135

10
AIR 1961 AP 502

11
AIR 1957 All 400

12
AIR 1956 Raj 113

13
(2012) 6 SCC 782

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