APPEAL FROM ORIGINAL DECREE NO. 66 OF 2007 (Against the judgment and order dated 17.10.2006 passed by Sub- ordinate Judge-1st Patna in Misc. Case No. 25 of 2003 under Order XXI Rule-97 C.P.C.) NITYA NAND SINGH SON OF BABUA LAL SINGH RESIDENT OF VILLAGE MOHALLA BAHADURPUR, P.S. SULTANGANJ, DISTRICT PATNA…………….. ………………….APPLICANT-APPELLANT. VERSUS 1. M/S ADITYA COOPERATIVE HOUSING SOCIETY LTD. THROUGH ITS SECRETARY AT RAJENDRA NAGAR, ROAD NO. 3 P.S. KADAMKUAN, DISTRICT-PATNA. ..PLAINTIFF-DECREE HOLDER OPPOSITE PARTY NO. 1- RESPONDENT1ST SET. 2. BABUA LAL SINGH SON OF LATE AMBIKA SINGH RESIDENT OF MOHALLA BAHADURPUR, P.S. KADAMKUAN, DISTRICT PATNA. …..DEFENDANT-JUDGMENT DEBTOR-OPPOSITE PARTY NO.2 - RESPONDENT, 2nd SET. For the Appellants: Mr. Santosh Kumar Sinha, Advocate. For the Respondents: Mr. Jashawir Singh Arora, with M/S Ajay Kumar and Ravi Bhatia, Advocates. ----------- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain,J. This first appeal has been filed by the applicant-appellant against the judgment and order dated 17.10.2006 by which Subordinate Judge-1, Patna dismissed Misc. Case No. 25 of 2003 which was filed by the appellant under Order XXI Rule 97 C.P.C. in Execution Case No. 12 of 1995 claiming that the suit land constituted part of the ancestral lands of Mitakshara joint family of which appellant was one of the coparceners along with respondent no. 2 and hence respondent no. 2 had no right to alone enter into an agreement for sale of the entire joint family property with respondent no. 1 without the consent of the appellant and accordingly the deed of agreement for sale executed by the respondents was not binding on the appellant who had independent right in the coparcenary but was neither impleaded in Title Suit No. 97 of 1982 nor was made party in F.A. No. 697 of 1985 as well as 2 in Execution Case No. 12 of 1995, which was filed for execution of the decree passed in F.A. No. 697of 1985. 2. At the time of final hearing of this case, learned counsel for respondent no. 1 raised a preliminary objection that the instant First Appeal was not maintainable as it was against an order by which a Miscellaneous Case under Order XXI Rule 97 C.P.C. was dismissed after hearing both the parties. It was further claimed that against the impugned order dated 17.10.2006 the appellant had filed Review No. 39 of 2006 which was dismissed by Sub-ordinate Judge 1st Patna vide order dated 10.06.2008 which was challenged by the appellant in C.R. No. 1149 of 2008 which was dismissed as withdrawn by a Bench of this High Court on 05.09.2008. Hence, he averred that the impugned order dated 17.10.2006 passed by Sub- ordinate Judge-1, Patna merged with his order dated 10.06.2008 passed in the review case and both of them merged with order dated 05.09.2008 passed by the High Court in the aforesaid Civil Revision. He also stated that Civil Revision No. 1149 of 2008 was withdrawn simpliciter by the appellants without any rider or condition or liberty, hence, the impugned order dated 17.10.2006, having merged with the High Court order dated 05.09.2008, has attained finality and cannot be interfered with in this First Appeal which is only against order dated 17.10.2006 passed by Sub-ordinate Judge-1, Patna in the Misc. Case. 3. Against the preliminary objection of the respondent regarding maintainability of the First Appeal, learned counsel for the appellant replied that challenging the impugned order dated 17.10.2006 revision and review both were filed by the appellant because he was entitled to file both on different grounds; if it was bad on merits civil revision could be filed; and if 3 there was patent error on the face of the record civil review could be filed, specially when order dated 17.10.2006 was a cursory order although it had to be a detailed judgment as if a suit was being decided as provided under Order XXI Rule 97 C.P.C. Hence he stated that in the aforesaid circumstances the appellant did not take any chance and after filing of review petition bearing Review No. 39 of 2006, he also filed a civil revision bearing C. R. No. 148 of 2007 as a precautionary measure against the same order dated 17.10.2006 but subsequently the said civil revision was converted into the instant F.A. No. 66 of 2007. 4. Learned counsel for the appellant stated that his Review No. 39 of 2006 was dismissed on 10.06.2008 against which he filed C.R. No. 1149 of 2008 and the said civil revision was dismissed as withdrawn on 05.09.2008 in view of the fact that the original order of the Sub-ordinate Judge dated 17.10.2006 still remained to be considered and decided in First Appeal No. 66 of 2007 and in those circumstances, this Court gave no finding on merits of the case in its order dated 05.09.2008. Learned counsel for the appellant further stated that while granting permission to convert C.R. No. 148 of 2007 into the instant First Appeal vide order dated 28.02.2007 the question of maintainability of the instant case was considered by a Bench of this Court and only then permission for conversion was passed and hence, there is no occasion for the respondents to raise the said question again and again. 5. Learned counsel for the appellant argued that if the original order contained any error apparent on the face on record, failure of the revision or appeal filed against it on merit, could not be any ground either by itself or taken along with others to reject the application for review. In this 4 connection he relied upon a decision of the Apex Court in case of M/S Thungabhadra Industries Ltd V. The Government of Andhara Pradesh reported in AIR. 1964 S.C. 1372. 6. Learned counsel for the appellant further argued that the principle of res judicata would apply only when the matter was heard and finally decided by a competent court but in the instant case, Civil Revision No. 1149 of 2007 was withdrawn, without any consideration on merit and hence the said principle would not be applicable to the instant case. He relied upon three decisions of this Court as well as two decisions of the Apex Court, namely, in case of Mahabir Prasad Jhunjhunwala V. Rama Chandra Prasad Choudhary reported in 1978 B.L.J. 390; in case of Harakh Nath Singh V. Lodha Singh reported in 1978 P.L.J.R. 659 (D.B); in case of Anand Mohan Boral V. Bilas Bihari Lal reported in AIR 1979 Patna 36; in case of M/S Tilokchand Motichand V. H.B. Munshi reported in AIR 1970 S.C 898; and in case of Union of India V. Sher Singh reported in AIR. 1997 S.C. 1796. 7. Learned counsel for the appellant averred that he had filed Title Suit No. 51 of 2003 before Sub-ordinate Judge 1st Patna City for declaration that the judgment and decree of this Court dated 24.09.1993 passed in F.A. No. 697 of 1985 was not executable in Execution Case No. 12 of 1995 and was not binding upon him. But in the same breath he further averred that although, his said title suit was pending, but it was violative of the specific provision of Order XXI Rule 101 C.P.C. and hence the respondents cannot take any advantage of that case in the instant First Appeal. In this connection he relied upon two decisions of the Apex Court in Case of Prasanta Banerji V. Pushpa Ashoke Chandani reported in 2002 5 (9) S.C.C. 554 and in case of Tanzeem-E-Sufia V, Bibi Haliman reported in 2002 (4) P.L.J.R.(S.C) 77. 8. Considering the entire facts and circumstances of this case, the arguments raised by learned counsel for the parties and the materials on record, this case appears to have a chequered history, which originated from an agreement for sale dated 13.12.1981 executed by respondent no. 2 and one Ambika Singh in favour of respondent no.1 with respect to the suit premises, namely 70 decimals of land of plot no. 267 khata No. 122 mauza Bahadurpur, P.S. Sultanganj within the town and District of Patna. 9. Admittedly on 17.03.1982 respondent no. 1 filed Title Suit No. 97 of 1982 against respondent no. 2 and Ambika Singh for specific performance of the said contract for sale, whereafter the said defendants appeared, filed joint written statement and contested the suit on various grounds. Finally, Sub-ordinate Judge-1, Patna vide his judgment and decree dated 31.08.2005 decreed the suit in part, directing the defendants to refund the advance taken by them to the plaintiff, but no decree for specific performance was passed. 10. Against the said judgment and decree of the trial court respondent no. 1 (plaintiff) filed F.A. No. 697 of 1985 in which respondent no. 2 and Ambika Singh were impleaded as respondents. The said First Appeal was admitted on 28.08.1988, but during the pendency of the appeal, one of the two defendants Ambika Singh died and his name was expunged at the instance of the appellant of that appeal who claimed that Ambika Singh died leaving behind the other defendant Babu Lal Singh (respondent no. 2) as his only heir who was already on record of that appeal. Finally, the said F.A. No. 697 of 1985 was allowed by a Bench of this Court vide judgment and 6 decree dated 24.09.1993 by which claim of the plaintiff was decreed with respect to specific performance of contract with several conditions including deposit of balance consideration money. This judgment and decree passed in First Appeal No. 697 of 1985 has never been challenged. 11. Consequently Execution Case No. 12 of 1995 was filed by the decree holder for execution of the aforesaid judgment and decree dated 24.09.1993 passed in F.A. No. 697 of 1985. In the said execution case the judgment debtor (respondent no.2) filed an objection to the Execution Case which was rejected by the executing court vide order dated 10.07.2000 as the cheque for the amount concerned had been submitted by the decree holder. Against the said order, judgment debtor (respondent no.2) filed C.R. NO. 1637 of 2000 which was dismissed by a Bench of this Court vide order dated 10.01.2001 holding the decree liable to be executed. 12. Thereafter the execution case proceeded and the entire amount having been deposited by the decree holder the executing court vide order dated 06.10.2001 directed execution of the sale deed by the court which was complied and after registration the executing court vide order dated 16.10.2001 directed the head clerk to bring sale deed from registration office. Finally, on 06.12.2001 the decree holder filed application for delivery of possession but when Nazir etc. went for delivery of possession the appellant claiming to be coparcener of the judgment debtor raised objections and obstructions and hence the decree holder filed application before the executing court for providing police for delivery of possession and also deposited money for the cost of police force but the matter remained pending on one ground or the other. 13. Subsequently on 26.09.2003 the appellant of this case, who 7 was not party to the earlier cases, filed Misc. Case No. 25 of 2003 under Order XXI Rule 97 of the Code of Civil Procedure claiming that the suit land constituted part of lands of Mitakshara joint family of which he was one of the coparceners along with respondent no.2, being their ancestral land and hence respondent no. 2 had no right to enter into agreement for sale of the entire joint family properties with the decree holder and the deed of agreement for sale was not binding on the applicant who had independent right in the coparcenary. He further claimed that the applicant not being party to either Title Suit or to the said First Appeal the judgment and decree passed therein were not binding on him. The said Misc. Case No. 25 of 2003 was heard at length by Sub-ordinate Judge1, Patna and by his detailed order dated 17.10.2006 (which is under challenge in this First Appeal) he dismissed the miscellaneous case after considering the points raised by learned counsel for the parties and facts and materials on record. 14. Against the aforesaid impugned judgment and order dated 17.10.2006 the applicant filed Review No. 39 of 2006 before Subordinate Judge-1, Patna on 17.11.2006 but the said review case was dismissed by the said court by a detailed order dated 10.06.2008. The applicant challenged the said order dated 10.06.2008 in C.R. No. 1149 of 2008 which was dismissed by a bench of this Court as withdrawn vide order dated 05.09.2008. In the said order no reason was mentioned for withdrawal nor any liberty was granted to the applicant. This order has also not been challenged by any one. 15. Against the above mentioned impugned judgment and order dated 17.10.2006 the applicant filed another case on 07.01.2007, this time before this Court by way of C.R. No. 148 of 2007. However, when the case was placed before a Bench of this Court on 28.02.2007 it was found that the 8 matter was not maintainable under its civil revisional jurisdiction and hence, on the prayer of learned counsel for the applicant the said Civil Revision was permitted to be converted into a First Appeal and after conversion it was numbered as F.A. No. 66 of 2007 which was admitted by the Registrar General on 03.03.2007. 16. In the instant said First Appeal the appellant filed I.A. No. 5743 of 2008 for stay of further proceeding of Execution Case No. 12 of 1995 claiming that he was in possession of the suit property which was subject matter of the suit. This Court, considered the said matter in detail and rejected the same vide order dated 01.10.2008 after arriving at a finding that the appellant did not have any prima-facie case and respondent no. 2 along with the appellant had succeeded in stalling the Execution Case since 1995. This order was challenged by the appellant vide Civil Appeal No. 8315 of 2009 which was allowed by the Supreme Court vide order dated 14.12.2009, setting aside the order of the High Court and staying execution proceedings during the pendency of the First Appeal and requesting the High Court to dispose of the appeal expeditiously. 17. In view of the aforesaid direction of the Apex Court when the instant First Appeal was listed under the heading orders for fixing the date of hearing, it was found that even the lower court records had not been received nor any step had been taken for preparation of the paper book. Hence, this Court directed the office to send express reminder to the court below calling for the lower court records and also directed issuance of notice for the non- appearing respondent no. 2 by both the processes. Thereafter, lower court records were received in this court and service report regarding valid service of notice on respondent no. 2 was also received. Thus, the First Appeal 9 became ready for hearing but before that paper book had to be prepared and hence both the parties were directed to file their list of documents etc. and deposit final printing cost and after compliance of the said order, paper books were prepared and this case was listed for final hearing. 18. When this case was taken up for final hearing, learned counsel for respondent no.1 raised a preliminary objection regarding maintainability of the First Appeal, as detailed in paragraph-2 above, to which learned counsel for the appellant replied as detailed in paragraphs 3-7 above. However, learned counsel for the parties agreed that the question of maintainability of this First Appeal be considered and decided first and only when the First Appeal is found to be maintainable in accordance with law, the merit of the respective claims of the parties be considered. Hence, both the parties were heard in detail as mentioned above on the question of maintainability of this First Appeal. 19. It is not in dispute that in this First Appeal the judgment and order under challenge is dated 17.10.2006 passed by Sub-ordinate Judge-1, Patna dismissing Misc. Case No. 25 of 2003 but against the same order the appellant had filed review no. 39 of 2006 which was dismissed by a detailed order dated 10.06.2008 by Sub-ordinate Judge-1, Patna whereafter, the order passed in review case was challenged by the appellant in C.R. No. 1149 of 2008 which was dismissed as withdrawn by a Bench of this Court vide order dated 05.09.2008. 20. So far revisions are concerned the jurisdiction of the High Court is invoked under Section 115 of the Code of Civil Procedure as a part of the general appellate jurisdiction of the High Court as a Superior Court and as such it is the appellate jurisdiction of the High Court which is being 10 invoked in wider and larger sense to redress the errors of the court below. Hence, the principle of merger of orders of inferior court in this superior court cannot be legally affected by making any distinction between an appeal and a revision. In this connection reference may be made to a decision of the Apex Court in case of Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat reported in case of Air 1970 S.C. 898. In the above facts and circumstances the dismissal of the Civil Revision in any manner whatsoever either by default or by withdrawal simpliciter or by dismissal on any preliminary matter, would naturally amount to confirmation of the order under challenge. In this regard reference may be made to a decision of this Court in case of Uma Shanker Sharma V. The State of Bihar reported in 2005 (1) P.L.J.R. 541. 21. So far review is concerned, it is merely challenging the original order before the same authority under Section 114 or under order XLVII of the Code of Civil Procedure, on the ground that there was some mistake or error apparent on the face of the record or there was discovery of new important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or for any reason found sufficient by the court. In the said circumstances, if any order is passed on review, whether it modifies or reverses or confirms the original order passed by that court it would amount to a new order superseding the original order of that court. In this regard reference may be made to a decision of the Calcutta High Court in case of Nibaran Chandra Sikdar V. Abdul Hakim reported in AIR 1928 Colcatta 418 as well as a decision of the Apex Court in case of Sushil Kumar Sen V. The State of Bihar reported in AIR 1975 S.C. 1185. 11 22. An order sheet of Misc. Case No. 25 of 2003 has been produced by learned counsel for the respondent which shows that it was dismissed on 17.10.2006 on merits after hearing learned counsel for the parties in detail and after considering the points raised by them in detail. The said order was affirmed by the same court vide order dated 10.06.2008 by which Review no. 39 of 2006 was dismissed on merit and hence the said order in review case superseded the original order which merged into the order passed in review case. 23. From a perusal of order of this Court dated 05.09.2008, it is quite apparent that the aforesaid order of the court below dismissing the review petition was challenged by the appellant in C.R. No. 1149 of 2008 which was dismissed on 05.09.2008 as the appellant sought permission to withdraw the same. The said order appears to be on the basis of withdrawal simpliciter without any rider and without any liberty being sought by or granted to the appellant in any manner whatsoever. Hence, such dismissal would naturally amount to confirmation of the orders of the court below which attained finality thereafter. 24. Civil Revision No. 148 of 2007, which has been converted into the instant F.A. No. 66 of 2007, was filed on 07.01.2007 although Review Case No. 39 of 2006 against the same order was pending before the Sub-ordinate Judge 1st Patna and was dismissed much thereafter on 10.06.2008. Hence, if the appellant was eager to continue with C.R. No. 148 of 2007, which was converted to F.A. No. 66 of 2007, he should not have challenged the order passed in review case before this Court in C.R. No. 1149 of 2008. Hence, the plea of the appellant that he withdrew C.R. No. 1148 of 2008 in view of the pendency of F.A. No. 66 of 2007 is merely a 12 lame excuse culled out only for replying to the objection of the respondents, as no such averment on behalf of the appellant had been recorded in order dated 05.09.2008 nor any opportunity have been granted to him to peruse any other remedy. In the said circumstances, this appeal being against order dated 17.10.2006 passed by Sub-ordinate Judge-1, Patna in Misc. Case No. 25 of 2003 cannot be legally allowed to continue as the said order impugned has already merged in the order of this court dated 05.09.2008 passed in C.R. No. 1149 of 2008 which was also with respect to the said order as well as against the order refusing to review the same. 25. So far the case laws relied upon by learned counsel for the appellant are concerned in the decision of the Supreme Court in case of M/S Thungabhadra Industries Ltd (supra) it had only been held that on the date when the application for review is filed no appeal had been filed against the same order, it was competent for the court hearing the application for review to dispose of the application on the merits, notwithstanding the pendency of the appeal but if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end. In the instant case, the jurisdiction of the court to consider the review petition not being in question the aforesaid case law is not applicable to the facts and circumstances of this case. 26. Learned counsel for the appellant has also relied upon two decisions of the Apex Court in case of M/S Tilokchand Motichand (supra) and in case of the Union of India (Supra) as well as two decisions of this Court in case of Anand Mohan Boral (Supra), and in case of Mahabir Prasad Jhunjhunwala (Supra), whereas the third decision in case of Harakh Nath Singh (Supra) has no similarity at all with the instant case as it is only with 13 respect to the difference in the period of limitation provided for revisions and appeals. However, the other four decisions mentioned above are cases in which it had been merely held that allowing the petitioner to withdraw a case is an order and it cannot be said to be a judgment or decree and there will be no application of res judicata. In the instant case, the said case laws also cannot be made applicable here as the instant matter is merely with respect to the orders of the court below being merged with the order of this Court passed in Civil Revision as its dismissal in any manner whatsoever was clearly affirmance of the orders of the court below. Furthermore, such dismissal on the basis of withdrawal simpliciter by the petitioner clearly depicts the intention of the petitioner that he did not want to challenge the order under revision or the order under review and as such the orders of the court below were sought to be affirmed at the instance of the petitioner himself. 27. So far the filing of Title Suit No. 51 of 2003 filed by the appellant for declaration that the judgment and decree of this court dated 24.09.1993 passed in F.A. No. 697 of 1985 was not executable is concerned, he has himself admitted that the