APPA RAMGONDA PATIL Vs. DATTATRAYA VINAYAK TENGSHE

JUDGEMENT

(1.) THIS is an application for review, against an order passed by Mr. Justice Dixit and myself on December 20, 1955, on a writ application under Articles 226 and 227 of the Constitution directed against the decision of the Revenue Tribunal, and the first point urged by Mr. Phadke on behalf of the respondent is that a review application does not lie. What is urged is that a Court has no inherent power of review and the only power of review conferred upon the civil Court is by Section 114 of the Civil Procedure Code, and inasmuch as a review is sought in a writ proceeding under the Constitution, Section 114 has no application, and if Section 114 has no application there is no power in the High Court to review its own decision on a writ proceeding and the High Court cannot assume that power under any inherent jurisdiction. It is pointed out that Article 137 of the Constitution expressly confers power of review upon the Supreme Court. In the absence of any such provision in the Constitution with regard to the High Court, a review application in a writ proceeding is not maintainable. Now, the answer to this argument of Mr. Phadke is simple. A writ application under the Constitution is a civil application and that application comes before a civil Court, which in this case happens to be the High Court, and the civil application must be governed, as far as procedure is concerned, by the provisions of the Code. Section 141 expressly provides: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Now, all proceedings in a civil Court terminate in a decision being given by the Judge and that decision constitutes the order of the Court. It is an order within the meaning of Section 2(14) which defines 'order' as the formal expression of any decision of a civil Court which is not a decree. This is not a decree because it is not the formal expression of an adjudication in a suit. If it be the formal expression of the adjudication by the Court in a civil proceeding, the formal expression must take the shape of an order, and, therefore, it is clear beyond doubt that the decision of this Court on the writ application was an order within the meaning of the Civil Procedure Code. If that is so, let us turn to Section 114 to see what the effect of this view is with regard to the power of the High Court to review an order made on a writ application.

(2.) A review lies under Section 114 from a decree or order from which an appeal is allowed by the Court, but from which no appeal has been preferred. When we turn to Section 109, an appeal is allowed against an order if the High Court certifies the order to be a fit one for appeal, and although an appeal is allowed no appeal admittedly has been preferred from this order and therefore if the other conditions laid down by Order XLVII are satisfied, then it is difficult to understand why the High Court has no power to review an order passed on a writ application. Such an order is one which clearly falls under Section 114(a).

(3.) THE rest of the judgment is not material to this report.