Maniram Soni vs Kanhaiyalal and Another

A.K. Sharma, J.—This appeal has been filed by the appellant decree holder under Order 43 Rule 1(w) of Code of Civil Procedure, 1908 against the order dated 01.11.2013 passed in M.J.C. No. 08/13 by learned 1st Additional District Judge, Hoshangabad, (M.P.) by which review petition filed by the defendant/judgment debtor has been allowed, setting aside the judgment and decree dated 27.07.2007 passed in Civil Suit No. 104-A/2006 by this same Court. Learned counsel for the appellant submitted that the appellant has filed First Appeal No. 732/07 before this Court against the judgment and decree dated 27.07.2007 and thereafter, he has filed the application for review petition before the trial Court.

Learned counsel for the appellant has drawn attention towards the provision of Order 47 Rule 1 of C.P.C. has submitted that the application for review of judgment can be filed by a person aggrieved by judgment or order, the appeal which is allowed but from which no appeal has been preferred, therefore, after filing of appeal the review petition before the trial Court was not maintainable and this fact suppressed by the respondents/judgment debtor before the learned trial Court.

Learned counsel for the appellant has cited judgment of Hon''ble Apex Court passed in the matter of M/s. Kabari Pvt. Ltd. Vs. Shivnath Shroff and Others, in which it has been held that for a review petition it is condition precedent no superior Court should have been moved for self, same relief before filing review petition under Order 47 Rule 1(a) of C.P.C.

Learned counsel for the respondent on the other hand cited another judgment of Hon''ble Apex Court passed in the matter of Rekha Mukherjee Vs. Ashis Kumar Das and Others, , in which it has been held that the appeal during the pendency of review petition is not maintainable but here the case is reverse the review petition has been filed after filing of the appeal before the High Court. Therefore, the judgment cited by learned counsel for the appellant is applicable to the present case.

Learned counsel for the respondent has submitted that the appeal before this Court is pending for payment of Court fees and since the review petition is allowed, the appeal will be withdrawn. The withdrawal of appeal filed before filing of the review petition has no effect, technically filing of the review petition is wrong and the respondent has committed one mistake by suppressing the fact of filing of First Appeal before the trial Court, while by withdrawing the appeal he will commit another mistake which is equal to fraud played upon the Court. By withdrawing the appeal as he has got the relief by suppression of fact from the trial Court, such a fraud played with the Court cannot be allowed. It is also surprising that the counsel who filed the First Appeal before this Court has also filed review petition before the trial Court. Therefore, it cannot be presumed that at the time of filing of review petition there was no knowledge of filing of appeal to the petitioner who has filed the review petition. Such a practice cannot be encouraged by the Court and person paying fraud with the Court cannot be allowed to take benefit of such fraud.

Therefore, appeal is allowed and the order passed by learned trial Court in the review petition dated 20.09.2013 is set aside. The respondent may raised those objection before this Court in First appeal.

Before parting with the case, considering the possibility of fraud to be played with the Court and further to prevent such possibility of playing fraud with the Courts, the Subordinate Court are directed to take affidavit from the petitioner filing application under Order 47 Rule 1 of C.P.C. to the effect that no appeal has been filed against the order challenged in review.

The Principle Registrar General, is directed to circulate the copy of the order to all the Subordinate Courts after taking permission from Hon''ble the Chief Justice, and take necessary steps to make suitable provision in the concerned rules making it necessary to filed affidavit to the said fact while filing the application for review under Order 47 Rule 1 of C.P.C.

A copy of this order be also sent to the Secretary Bar Council of (M.P.), Jabalpur, for information and taking necessary steps to prevent such kind of misconduct by any learned member of the Bar. A copy of this order be also kept with the record of F.A. No. 732/07 for consideration.

No order as to costs.