Ramanuj vs Board of Revenue and Others

Krishna Murari, J.—Heard learned Counsel for the Petitioner, learned Standing Counsel for the State Respondents and Shri S.K. Yadav holding brief of Shri Anuj Kumar for Respondent No. 4 Gaon Sabha.

With the consent of the learned Counsel for the parties, the writ petition is being disposed of without calling for a counter affidavit.

Undisputed facts relevant for the purposes of the case are that the Petitioner filed suit u/s 229B of the U.P. Zamindari Abolition And Land Reforms Act (for short the Act) seeking declaration of his rights in the disputed land which was dismissed by the trial Court. The Petitioner went up in appeal, vide judgment and decree dated 17.2.2010, lower appellate Court decreed the suit. Subsequently, Respondent Nos. 3 and 4 moved an application under Order XLVII Rule 1 Code of Civil Procedure, which was allowed vide order dated 16.4.2010 by the appellate Court without any notice or opportunity to the Petitioner and the judgment and decree dated 17.2.2010 was recalled and the appeal was fixed for rehearing. Order dated 16.4.2010 was challenged by the Petitioner by filing Writ Petition No. 26334 of 2010, which was dismissed on the ground of availability of alternative remedy of filing an appeal before the Board of Revenue. Thereafter, the Petitioner filed an appeal u/s 331(3) of the Act. The Board of Revenue vide impugned order dated 21.5.2010 dismissed the same on the ground that a second appeal would lie u/s 331(4) of the Act and the First Appeal From Order u/s 331(3) was not maintainable.

It is contended by learned Counsel for the Petitioner that in view of Section 331(3) of the Act, which provides that an appeal shall lie from an order of the nature mentioned in Section 104 of the Code of Civil Procedure, or in Order 43 Rule 1 Code of Civil Procedure, as such, the appeal was maintainable and has wrongly and illegally been dismissed by the Board of Revenue.

I have considered the argument advanced on behalf of the learned Counsel for the Petitioner.

Section 331(3) of the Act reads as under.

(3) An appeal shall lie from any decree or from an order passed u/s 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908, (V of 1908), or in Order 43, Rule 1 of the First Schedule to the Code passed by a Court mentioned in column No. 4 of Schedule II to this Act in proceedings mentioned, in column No. 3 thereof to the Court or authority mentioned in column No. 5 thereof.

Order 43 Rule 1 (w) provides an appeal against an order passed under Rule 4 of Order 47 granting an application for review.

Rule 4 of Order 47 relevant for the purpose reads as under.

Application where rejected.-(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted. : Where the Court is of opinion that the application for review should be granted, it shall grant the same:

Provided that....

From a conjoint reading of Sections 331(3) of the Act, Order 43 Rule 1(w) and the provisions of Order 47 Rule 4(2), it is clear that an appeal u/s 331(3) would lie against an order granting an application for review.

In the case in hand vide order dated 16.4.2010, the earlier judgment dated 17.2.2010 was recalled and appeal was fixed for hearing after notice to the other side. Thus, granting the review application was an order passed in exercise of Order 47 Rule 4(2) and was clearly appealable u/s 331(3) of the Act. The view taken by the Board of Revenue that appeal would lie u/s 331(4) also cannot be sustained in view of the provisions of Section 331 (4), which clearly provides that second appeal shall lie on any of the grounds specified in Section 100 of the CPC from the final order or decree, passed in an appeal under Sub-section (3). Mere grant of review application does not results into a final order or decree, and the effect is that earlier decree stands withdrawn, and till such time final orders are passed, either modifying, reversing or confirming the decree originally passed, a new decree cannot be said to have come in existence. The view taken by me finds support from a decision of Hon''ble Apex Court in the case of Sushil Kumar Sen Vs. State of Bihar, wherein it has been observed as under.

It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one.

Vide order dated 16.4.2010, the Commissioner had only recalled the judgment and decree dated 17.2.2010 and had fixed the appeal for hearing and the said order cannot be termed to be a final judgment and decree, hence, also the second appeal would not be maintainable u/s 331(4) of the Act.

In view of above facts and discussions, impugned order dated 21.5.2010 is not liable to be sustained and is hereby quashed. Writ petition stands allowed. With the direction to Board of Revenue to register the appeal and proceed to decide the same in accordance with law.