ANANDI PRASAD DWIVEDI Vs. STATE OF MP

JUDGEMENT

(1.) The facts are leading to a impossible situation. The Petitioner herein filed a suit which was dismissed and thereafter, the regular first appeal was filed before the first appellate Court. The First Appellate Court allowed the appeal, set aside the judgment and decree passed by the trial Court and remanded back the matter to the trial Court to proceed in accordance with the directions of the appellate Court. It appears that thereafter the Plaintiff/Appellant filed an application before the appellate Court under Order 47 Rule 1 Code of Civil Procedure for review of the judgment and decree. The Appellate Court took up the application for review and after hearing both the parties without making any observation or recording a finding that the earlier order of remand was right or wrong, set aside the earlier order and dismissed the regular first appeal which was earlier allowed. After disposal of the application for review and dismissal of the appeal, the first appellate Court did not issue a direction for framing a decree.

(2.) The Plaintiff is before this Court under Article 227 of the Constitution of India with a submission that the learned first appellate Court while taking up the application for review was not entitled to set aside the judgment and decree under which the matter was remanded to the trial Court but at best could dismiss the application for review or if it was of the opinion that the earlier judgment remanding the matter was bad then the appellate Court was required to recall the earlier judgment and decree and rehear the parties on merits of the appeal.

(3.) After hearing learned Counsel for the Petitioner, we are of the opinion that if we hold that the review petition was allowed because earlier judgment and decree remanding the matter was set aside then the impugned order will have to be challenged under Order 43 Rule (1)(w) of the Code of Civil Procedure. In the alternative, if we hold that after granting the review the appellate Court has dismissed the appeal without issuing a direction for framing the decree then the order passed by the learned Court below would be deemed to be a judgment under Section 96 of Code of Civil Procedure and a regular second appeal would lie. In any case, the petition under Article 227 of the Constitution of India would not be maintainable.