IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.877 of 2010 1. RAM CHARAN DAS 2. Ram Babu Das Both Sons of Late Lal Bihari Das. Both residents of village – Baijalpur Kesho, P.S. – Sonepur, District – Saran. ...... Defendants/Respondents/Petitioners/Appellants. Versus 1. BINDA LAL SHARMA, Son of Late Bishun Dayal Sharma. 2. Amar Nath Sharma, Son of Bindalal Sharma. Both residents of village - Baijalpur Kesho, P.S. – Sonepur, District – Saran. ....... Plaintiffs/Appellants/Opp. Parties/Respondents. ----------- 02/ 25.11.2010 Heard. This miscellaneous appeal is directed against the order dated 22.07.2010 passed by A.D.J – IX, Saran in Misc. Case No. 05 of 2010 by which it has been ordered that the miscellaneous case filed under Order XLVII Rule 1 of the C.P.C. for review of the judgment dated 29.10.2009 passed in Title Appeal No. 06 of 2004 and rehear the appeal by the court is not maintainable as the scope of the review is limited. Learned counsel for the appellants contends that a title suit was filed bearing no. 64 of 1994 for declaration of title and recovery of possession of the suit land. The suit was though decreed, but dismissed against this appellant. Against the said decree an appeal was preferred by the defendants. It is alleged 2 that without notice to this appellant the appeal was allowed ex- parte and after the knowledge of the ex-parte decree the appellant appeared and filed a miscellaneous case that this appellant allowed to place his case to review the order passed in appeal. It is submitted that in fact that Miscellaneous Case 05 / 2010 was for setting aside the ex-parte decree passed in Title Appeal No. 06 of 2004 which was preferred against the judgment and decree passed in Title Suit No. 64 of 1994. However, the petition of Miscellaneous Case No. 05 of 2010 has been annexed as Annexure 1 to the memo of appeal before this Court. However, in the said petition it is apparent on the face of it that a prayer has been made for the review of the judgment and order passed in Title Appeal No. 06 of 2004 and prayer was made for an opportunity to be given to the appellant to present his case and though in paragraph no. 11 of the said petition it had been requested that the appellant be made party and then the appeal be heard. However, the appellant was a party in the said appeal. There was no need to add any party. However, it appears that the whole approach appears to have been misconceived and not expressed whether it was a review petition or whether it was a petition under Order XLI Rule 21 of the C.P.C. There is no prayer about setting aside the 3 ex-parte judgment or decree on the ground that he was prevented by sufficient cause from appearing or that no notice served and the prayer in the said petition was to review the order, the learned court below rejected the petition by order dated 22.07.2010 treating the said petition as review. Hence, I do not find any illegality in the impugned order dated 22.07.2010, when there was expressed prayer to review the order. The learned court below treated the petition as review petition to review the order passed in appeal and hence I do not feel inclined to interfere with the impugned order. However, the appellant may file petition under Order XLI Rule 21 and hence under the fact and circumstance, the appellant is given privilege to file a proper petition before the court below under Order XLI Rule 21 subject to limitation, if any and in case there being limitation, if a petition is filed for condonation, which may be considered on its own merit without being prejudiced by this order. Hence, this miscellaneous appeal is disposed of. Kundan (Gopal Prasad, J.)