ALFONS SUSHIL MINZ Vs. KINU ORAON

JUDGEMENT

(1.) This review application has been preferred under Order 47 Rule 1 of Civil Procedure Code against the order dated 11.03.2010 of Honourable Single Judge in Misc. Appeal no. 210 of 2007.

(2.) Learned counsel for the petitioner has argued that the Supreme Court in the case of Board of Control for Cricket in India Vs. Netaji Cricket Club reported in (2005) SCC 741 has held that an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent in the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore, What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47 Rule 1 of the Code is wide enough to include a misconception of fact or law by Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit", (The act of court shall prejudice no party). Placing reliance on the aforesaid ratio, learned counsel has submitted that in the judgment dated 25.04.2007 in Title Appeal no. 35 of 2005, the Additional Judicial Commissioner, Ranchi, while remanding the case to the Trial Court has set aside the judgment but has not set aside the decree. It is contended that Trial Court shall again pass a fresh judgment. It is contended that accordingly another decree will be argued which will give rise to two decrees and the lower appellate court has committed a mistake in not setting aside the earlier decree, which is alien to law and this error has been allowed to subsist by the impugned order. It is submitted that in Order 41 Rule 23-A & 25 of C.P.C., the words used is decree, and it is the decree which has to be set aside, as appeal is preferred against the decree.

(3.) Per contra, Mr. P.P.N. Roy, learned senior counsel for the respondents has submitted that admittedly against the judgment of the Additional Judicial Commissioner, Ranchi, the petitioner had preferred Misc. Appeal no. 210 of 2007 under Order 43 Rule 1(u). The above grounds were taken and after considering the submissions, the said Misc. Appeal was dismissed with the observation that "no error has been committed in the impugned order under appeal". It is argued that the decree is a formal expression of the final order or judgment and has been defined in Section 2(2) of C.P.C., as well as under Order 45 Rule 1 and setting aside of the judgment would render the decree a nullity. Thus, the earlier decree has lost its force. It is only the judgment and decree passed by the Trial Court after remand which shall be recognised by law.