Chuppan Nadar Shanmukhan Nadar vs Sreedharan Thampi

K.G. Balakrishnan, J.—An appeal filed by the respondent was dismissed by the court. Thereafter the appellant filed an interlocutory application for restoration of the appeal. That also was dismissed. Then the appellant filed a review application. That was allowed by the impugned order. That is challenged in this civil miscellaneous appeal. Defendant is the appellant Plaintiff filed the suit for redemption of mortgage and for recovery of possession. The appellant-defendant contended that the plaintiff has no right to redeem the property, as the appellant had fixity of tenure. The matter was referred to the Land Tribunal and the Tribunal found that the defendant was a tenant entitled to fixity of tenure. The suit was consequently dismissed. The plaintiff filed appeal before the lower appellate court challenging the dismissal of the suit. The defendant-respondent contended that the appeal was barred by time. The court below accepted the plea and dismissed the suit. The plaintiff had obtained a certified copy of the last paragraph of the judgment to enable him to file appeal, but he did not file appeal. Later when he filed the appeal on the basis of the printed copy of the judgment and decree, the defendant raised the contention that'' the plaintiff could have filed an appeal on the basis of the certified copy of the last paragraph of the judgment and therefore the appeal filed on the basis of the printed copy of the judgment was belated. The court in advertently accepted this plea and dismissed the suit as time barred. The appellant was not heard on this matter. Later the appellant filed an application to restore the appeal to the file. That also was dismissed. Then he filed the review application.

The main contention urged by the appellant''s counsel is that there was no error apparent on the lace of the record to review the earlier order dismissing the appeal and that an appeal itself is provided under Order 41 Rule 19 C.P.C. So the court should not have allowed the review of the judgment. I am not inclined to accept this contention.

Even if an appeal in provided against the order passed under Order 41 Rule 19 the plaintiff would be justified in filing a review application under Order 47 Rule 1. Order 47 Rule 1(a) clearly permits such a course to be adopted by the affected party. So the review petition as such was maintainable.

It may also be noticed that the lower appellate court erroneously found for the first Instance that the appeal filed by the plaintiff was belated. Under rule 6A of Order 20 C.P.C. a party can request for a certified copy of the last paragraph of the Judgment when the decree is not drawn up in time and Order 20 R. 6-A (2) (a) enables the party to file as appeal on the basis of the last paragraph of the judgment and it is made clear that the last paragraph so obtained by the party shall be treated as the decree for the purpose of Order 41, Rule 1 C.P.C. But this does not mean that as soon as he obtains the last paragraph of the judgment is provided under Order 20 R. 6A (2) the limitation to file the appeal would run against him. It is only an enabling provision for expeditions filing of appeal. An aggrieved party need file appeal only on the basis of the certified/printed copy of the judgment and decree obtained by him. In the instant case the court below erroneously found that the appeal was belated on the ground that the plaintiff herein had obtained certified copy of the last paragraph of the judgment. Even if these matters were there, the court did not elaborately consider these facts and has not taken as a ground for reviewing the judgment. So on the facts disclosed in this matter I do not think that the court below has committed any error in reviewing Its earlier order.

The civil miscellaneous appeal is without any merit and the same is dismissed, however, without costs.