MANIRAM SONI Vs. KANHAIYALAL

JUDGEMENT

(1.) THIS appeal has been filed by the appellant decree holder under Order 43 Rule 1(w) of Code of Civil Procedure, 1908 against the order dated 01.11.2013 passed in M.J.C. No. 08/13 by learned 1st Additional District Judge, Hoshangabad, (M.P.) by which review petition filed by the defendant/judgment debtor has been allowed, setting aside the judgment and decree dated 27.07.2007 passed in Civil Suit No. 104 -A/2006 by this same Court. Learned counsel for the appellant submitted that the appellant has filed First Appeal No. 732/07 before this Court against the judgment and decree dated 27.07.2007 and thereafter, he has filed the application for review petition before the trial Court.

(2.) LEARNED counsel for the appellant has drawn attention towards the provision of Order 47 Rule 1 of C.P.C. has submitted that the application for review of judgment can be filed by a person aggrieved by judgment or order, the appeal which is allowed but from which no appeal has been preferred, therefore, after filing of appeal the review petition before the trial Court was not maintainable and this fact suppressed by the respondents/judgment debtor before the learned trial Court.

(3.) LEARNED counsel for the respondent on the other hand cited another judgment of Hon'ble Apex Court passed in the matter of Rekha Mukherjee Vs. Ashish Kumar Das and others, : AIR 2005 SC (1944), in which it has been held that the appeal during the pendency of review petition is not maintainable but here the case is reverse the review petition has been filed after filing of the appeal before the High Court. Therefore, the judgment cited by learned counsel for the appellant is applicable to the present case.