Case Note & Summary
The judgment concerns two review petitions filed by the original plaintiff, Genba Sahadu Modak (since deceased through his legal heir), against the dismissal of his second appeals. The dispute arose from two connected civil suits: Regular Civil Suit No. 897 of 1990 for partition and separate possession filed by Genba, and Regular Civil Suit No. 1481 of 1988 filed against him. Both suits were decreed by the Trial Court. The original defendants appealed, resulting in Civil Appeal No. 630 of 2000 being allowed by the Ad-hoc District Judge, Pune on 12.3.2002, and Civil Appeal No. 627 of 2000 being dismissed. Against these appellate orders, Genba filed Second Appeal No. 1134 of 2004 and Second Appeal No. 1135 of 2004. At the admission stage of the second appeals, the only point raised was alleged non-compliance of Order 41 Rule 31 of the Code of Civil Procedure, 1908 (CPC) by the lower appellate court, which had framed the point for determination as 'Whether the judgment and decree passed by the Trial Court is legal, proper and correct?' and answered it in the negative. Both second appeals were dismissed with costs on 1.12.2004. The present review petitions challenged that dismissal. The court heard the petitioners' counsel and perused the record. The court held that review is not an appeal in disguise and that no error apparent on the record was shown. The point regarding Order 41 Rule 31 CPC was already considered and rejected at the time of admission of the second appeals. The court found no merit in the review petitions and dismissed them.
Headnote
A) Civil Procedure - Review - Error Apparent on Record - Order 47 Rule 1 CPC - Review petition against dismissal of second appeal at admission stage - Petitioner alleged non-compliance of Order 41 Rule 31 CPC by lower appellate court - Held that review is not an appeal in disguise and no error apparent on record was shown - The point raised was already considered and rejected at the time of admission of second appeals (Paras 1-5). B) Civil Procedure - Second Appeal - Admission Stage - Order 41 Rule 31 CPC - Applicability - Lower appellate court framed point for determination as 'Whether the judgment and decree passed by the Trial Court is legal, proper and correct?' - Held that Order 41 Rule 31 CPC applies to judgments of first appeal, not to admission stage of second appeal - The second appeal was dismissed for lack of substantial question of law, not on merits (Paras 4-5).
Issue of Consideration
Whether the dismissal of second appeals at admission stage without framing substantial question of law and without compliance of Order 41 Rule 31 CPC warrants review.
Final Decision
Both review petitions are dismissed. No order as to costs.
Law Points
- Review jurisdiction limited to error apparent on record
- Order 41 Rule 31 CPC not applicable at admission stage of second appeal
- Second appeal dismissed for lack of substantial question of law
