(1) ra203-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION NO. 203 OF 2011 IN SECOND APPEAL NO. 437 OF 2008 Vasant s/o Eknathrao Acharya APPLICANT/ APPELLANT VERSUS Chabubai w/o Sriram Sable & others RESPONDENTS ..... Mr. P.R. Katneshwarkar, advocate for the Review Petitioner/Appellant. Mr. N.T. Bhagat, advocate for Respondent Nos. 3 and 4. ..... CORAM : M.T. JOSHI, J. DATED : 10th OCTOBER, 2011 ORAL ORDER: 1. Heard learned counsel for the parties. 2. This is an application seeking review of the order dated 17th August, 2011, passed in Second Appeal No. 437/2008. 3. Mr. P.R. Katneshwarkar, learned counsel appearing for the Review Petitioner/original Appellant, submits that since the judgement was delivered in the suit which was filed subsequent to (2) ra203-11 the suit, the question of res judicata was not applicable. It is, no doubt, true that the earlier judgement was passed in a suit which was filed subsequently. However, the Explanation-I to Section 11 of the Code of Civil Procedure, which explains the term "former suit", reads as under : "Explanation I. - The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto." 4. It is thus clear that "former suit" does not mean a suit which is filed subsequently but the suit which has been decided first in point of time. In this view of the matter, when in the suit in which the impugned decree is rendered, the earlier judgement was placed on record, the appellant/review petitioner had every opportunity to raise the pleading of res judicata. In "T. Rajeshwari v. T.C. Saravanabava" 2004 (2) Mh.L.J. 865, the Supreme Court, after relying over catena of authorities, had held that plea of res judicata cannot be raised for (3) ra203-11 the first time in an appeal when it was not taken in the trial Court by raising necessary pleadings. That was the very observation made by this Court in the order which is under review. In that view of the matter, there is no error in the order under review, on the face of record. 5. In the result, the Review Application is dismissed with no order as to costs. [M.T. JOSHI, J.] npj/ra203-11