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Judgment
11 paragraphs · 352 wordsC.S.Dias, J
The original petition is filed challenging Ext.P4 order passed in I.A No.1/2021 in O.S No.401/2013 by the Court of the Munsiff, Attingal.
The case of the petitioners in the original petition is that, the first petitioner had filed the suit against the respondents and the second petitioner for recovery of money. Subsequently, the second petitioner/third defendant in the suit was transposed as the second plaintiff in the suit. As the petitioners failed to pay the balance court fee, the plaint was rejected by Ext.P2 judgment. Challenging Ext.P2, the petitioners filed I.A No.1/2021 (Ext.P3) to review Ext.P2 judgment. The court below, by the impugned Ext.P4 order, dismissed Ext.P3 review petition. Ext.P4 order is improper and illegal. Hence the original petition.
Heard;Sri.P.Anoop, the learned counsel appearing for the petitioners on admission.
The question is, is there any illegality in Ext.P4 order?
Undisputedly, the plaint was rejected by the court below by Ext.P2 judgment under Order 7 Rule 11(C) of the Code of Civil Procedure (in short ‘Code’).
An order passed under Order 7 Rule 11 (C), is a decree under Section 2(2) of the Code, and is appealable under the Code.
The petitioners, instead of preferring an appeal, chose to file Ext.P3 review petition. By Ext.P4 order, the court below dismissed Ext.P3 review petition.
In DSR Steel (P) Limited v. State of Rajasthan and others [(2012) 6 SCC 782], the Hon’ble Supreme Court has held that, when a review petition is dismissed, there is no merger of the order with the original decree. Then, the remedy of the party is to file an appeal challenging the original decree and not the order. The above position is reiterated by the Hon’ble Supreme Court in Municipal Corporation of Delhi v. Yaswant Singh Negi [(2020 (9) SCC 815].
In view of the categoric declaration of law by the Hon’ble Supreme Court in the afore-cited decisions, I hold that the original petition is not entertainable.
Resultantly, without prejudice to the right of the petitioners to challenge Ext.P2 judgment, in accordance with law, the original petition is dismissed.