Orissa High Court
Dillip Kumar Patra vs Rasmita Patra …. Opposite Party on 22 August, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R.P. No.35 of 2024
(In the matter of an application under Section 115 of the Code of Civil Procedure, 1908)
Dillip Kumar Patra .... Petitioner
-versus-
Rasmita Patra .... Opposite Party
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioner - Ms. A. Ray.
For Opposite Party- Mr. Budhiram Das, Advocate.
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :21.07.2025 :: Date of Judgment :22.08.2025
A.C. Behera, J. This revision under Section 115 of the CPC, 1908 has
been filed by the petitioner praying for setting aside the impugned order
dated 19.07.2024 passed in Review Petition No.1 of 2024 (Annexure-5)
by the learned Senior Civil Judge, Puri.
2. The petitioner and Opp. Party in this revision were the petitioner
and Opp. Party in the Review Petition No.1 of 2024 (arising out of C.S.
No.471 of 2022) before the Court of learned Senior Civil Judge, Puri.
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3. The factual backgrounds of this revision, which prompted the
petitioner for filing of the same is that, the petitioner and the Opp. Party
in this Revision were the plaintiff and defendant respectively in C.S.
No.471 of 2022 before the learned Senior Civil Judge, Puri. That suit vide
C.S. No.471 of 2022 was filed by the petitioner being the plaintiff
praying for declaration of his right, title and interest over the suit
properties and for a declaration of the sale deed as invalid, for
confirmation of possession and for permanent injunction in respect of the
suit properties against the defendant (Opp. Party).
The Judgment and Decree of that suit vide C.S. No.471 of 2022
was passed on dated 09.01.2024 on contest against the defendant (Opp.
Party in this Revision) by the learned Sr. Civil Judge, Puri, wherein, the
right, title and interest of the plaintiff over the suit properties was
declared, the sale deed bearing No.11482105939 dated 18.10.2021
executed in favour of the defendant by the plaintiff was declared as
invalid and inoperative clarifying that, as the defendant is in possession
over the suit properties, then, the question of passing any permanent
injunction against the defendant does not arise.
After that Judgment and Decree passed on dated 09.01.2024 in
C.S. No.471 of 2022, the plaintiff being the petitioner filed a Review
Petition vide Review Petition No.1 of 2024 on dated 30.01.2024 under
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Section 114 read with Order 47, Rule 1 of the CPC, 1908 against the
defendant arraying her as Opp. Party praying for the review of the
ordering portion of the Judgment & Decree passed in C.S. No.471 of
2022 on dated 09.01.2024 for addition of decree for recovery of
possession giving a direction to the defendant to deliver possession of the
suit properties to the petitioner/plaintiff by the Opp. Party/defendant with
the reliefs already granted as stated above stating that, though, he
(plaintiff) had prayed for declaration of title, confirmation of possession
and permanent injunction in his plaint in the suit vide C.S. No.471 of
2022 and he (plaintiff) had not prayed for recovery of possession, but as
per law, the Court should have granted the decree for recovery of
possession with the reliefs already granted as stated above invoking the
provisions of Order 7, Rule 7 of the CPC, 1908 and non-providing of the
decree of recovery of possession with a direction to the defendant to
deliver possession of the suit properties to him (plaintiff) within the
stipulated period as per law is an error of law apparent on the face of
record, which is required to be reviewed and corrected and if the same is
not corrected, the plaintiff (petitioner in this CRP) shall be highly
prejudiced, which shall encourage multiplicity of litigation. Therefore, he
(petitioner/plaintiff) prayed for addition of the decree for recovery of
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possession with the relief(s) granted in the ordering portion of the
Judgment and Decree passed in C.S. No.471 of 2022 in his favour.
4. The Opp. Party (defendant) objected the same stating that, she
(defendant/Opp. Party) has already preferred an appeal vide R.F.A. No.11
of 2024 challenging the aforesaid Judgment and Decree dated 09.01.2024
passed in C.S. No.471 of 2022 and the said 1st Appeal vide R.F.A. No.11
of 2024 is pending before the learned First Appellate Court for hearing, in
which, the plaintiff (petitioner) being the respondent has already made his
appearance and accordingly, he (plaintiff) is contesting that 1st Appeal
vide R.F.A. No.11 of 2024. For which, the petition for review filed by the
plaintiff (petitioner) is not entertainable under law. Because, the
continuation of the Review Petition shall amount to a parallel proceeding
with the 1st Appeal vide R.F.A. No.11 of 2024. That apart, there is no
apparent error in the face of the Judgment and Decree for exercising the
power of review in the same. The plaintiff has filed petition for review
with an intention to re-open the case on merit in the guise of review of the
same, which is not permissible under law. Therefore, the review petition
filed by the plaintiff (petitioner) is liable to be dismissed.
5. After hearing from the learned counsels of both the sides, the
learned Senior Civil Judge, Puri dismissed to the Review Petition No.1 of
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2024 of the plaintiff (petitioner) on dated 19.07.2024 on contest assigning
the reasons that,
“when an appeal vide R.F.A No.11 of 2024 is pending
against the Judgment and Decree passed in C.S. No.471 of
2022 and when as per law, a review petition under Order 47,
Rule 1 of the CPC, 1908 is maintainable, only when no appeal
is preferred, then, in this matter, when an appeal is pending
against the Judgment and Decree sought to be reviewed, then
the review petition filed by the plaintiff is not maintainable
under law.”
6. On being aggrieved with the said order of dismissal to the Review
Petition No.1 of 2024 of the petitioner (plaintiff) passed on dated
19.07.2024 by the learned Sr. Civil Judge, Puri, he (petitioner/plaintiff)
filed this CRP under Section 115 of the CPC, 1908 challenging the same
being the petitioner against the defendant arraying her (defendant) as
Opp. Party.
7. I have already heard from the learned counsel for the petitioner
(plaintiff) and learned counsel for the Opp. Party (defendant).
8. In order to assail the impugned order, the learned counsel for the
petitioner (plaintiff) relied upon the decisions i.e.
(i) 2024 SCC Online Del. 7195:Sh. J.M. Kohli (through LR Ms. Usha Kohli
Vs. Smt. Vimal Kanta (through LR Ms. Renu Kohli);
(ii) AIR 2006 Orissa 1:Bivas Chandra Samanta Vs. Hira @ Madan Mohan
Biswal & Others;
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9. On the basis of the averments made in the Review Petition No.1 of
2024 under Order 47, Rule 1 of the CPC filed by the petitioner (plaintiff),
the objection against the same filed by the Opp. Party (defendant), the
findings and observations made by the learned Trial Court in the
impugned order dated 19.07.2024 and the rival submissions of the learned
counsels of both the sides, the crux of this revision is that,
When the petitioner (plaintiff) had not prayed for
recovery of possession in the plaint of his suit vide C.S.
No.471 of 2022 along with other relief(s) and when after the
Judgment and Decree passed by the learned Trial Court in
C.S. No.471 of 2022 against the defendant, the defendant
has preferred the 1st Appeal vide R.F.A. No.11 of 2024,
which is pending for hearing, to which, the petitioner
(plaintiff) is contesting, then, whether the Review Petition
No.1 of 2024 under Order 47 Rule 1 of the CPC, 1908 filed
by the plaintiff for addition of decree for recovery of
possession along with the reliefs already granted in his
favour reviewing the ordering portion of the Judgment &
Decree is entertainable under law and whether the
impugned order dated 19.07.2024 passed by the learned
Senior Civil Judge, Puri in dismissing the Review Petition
No.1 of 2024 of the plaintiff (petitioner) is sustainable under
law?
10. It is the settled propositions of law that, an application for review
of the Judgment and Decree under Order 47 Rule 1 of the CPC, 1908 is
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C.R.P. No.35 of 2024
neither an appeal nor a revision to a superior Court, but a request to the
same Court, wherein the Judgment and Decree was passed to recall or
reconsider its decision on the limited ground prescribed for review within
the parameters of Section 114 read with Order 47, Rule 1 of the CPC,
1908, only when, there will be an error apparent on the face of record.
“As per law, an erroneous decision can only be
corrected by the higher forum, but an error apparent on the
face of record can be corrected by the same Court
exercising review jurisdiction.
An error which is not self-evident and the same is
detected by a process of reasoning, the same is not an error
apparent on the face of record.
An order, or decision or Judgment cannot be corrected
merely it is erroneous in law. The same also cannot be
corrected on the ground that, a different view could have
been taken by the Court, who passed the order or Judgment
on the point of fact or law. In any case, while exercising the
power of review, the Court concern cannot sit in an appeal
like an Appellate Court over its own Judgment and
decision.”
11. Here in this matter at hand, the petitioner (plaintiff) had not prayed
for any relief in his plaint for recovery of possession of the suit
properties, though, he (plaintiff) had prayed for other relief(s).
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So, the learned Trial Court has not granted the relief concerning
recovery of possession in favour of the plaintiff consciously. The
Judgment and Decree passed on dated 09.01.2024 in C.S. No.471 of 2022
in favour of the plaintiff and against the defendant was an appealable
decree. The defendant (Opp. Party) has preferred an appeal vide R.F.A.
No.11 of 2024 challenging the said Judgment and Decree passed against
her (defendant) in C.S. No.471 of 2022 and the said Appeal vide
R.F.A.No.11 of 2024 is pending for hearing, to which, the petitioner
(plaintiff) being respondent is contesting.
12. It is the settled propositions of law that, where an appealable
decree is passed, neither revision petition under Section 115 of the CPC,
1908 nor a review petition under Order 47, Rule 1 of the CPC to
challenge the same is entertainable under law.
Because, proper remedy for the aggrieved party to prefer an appeal
or to file cross objection in the appeal filed by his/her opponent or to raise
his/her contentions in the 1st Appeal filed by his/her opponent as per
Order 41, Rule 33 of the CPC, 1908.
13. On this aspect, the propositions of law has already been clarified in
the ratio of the following decisions of the Hon’ble Courts and Apex
Court;
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(I) In a case between Sh J.M Kohli (Through Lr Ms Usha
Kohli) vs Smt Vimal Kanta (Through Lr Ms Renu
Kohli) Para No.27 decided in C.R.P. No.238/2024 & CM
Appl. 45409/2024 on 15.10.2024 (Delhi High Court) that,
where an appealable decree has been passed, no revision
under Section 115 of the CPC should be entertained
against the order of rejection to the review petitioner.
The revision against the rejection of review
petition is not maintainable under law. The proper remedy
for the parties (whose application for review is rejected) to
file an appeal against the decree. For which, the revision
petition is liable to be dismissed.
(II) In a case between Anup Kumar Roy & Others Vs. State
of Tripura & Others reported in AIR 2012 Gauhati 163
that, when there is an appeal before the Supreme Court
against the Judgment and Decree, jurisdiction of the High
Court to entertain a review petition is lost as provided by
Sub-Rule 1 of Order 47 of the CPC.
(III) In a case between Meghmala & Others Vs. G.
Narasimha Reddy & Others reported in 2011 (2) Apex
Court Judgments 496 (SC) that, if superior Court had
been moved against the Judgment and Decree, then, two
parallel proceedings before the two forums cannot be
taken.
14. Here in this matter at hand, when the Judgment and Decree passed
in C.S. No.471 of 2022 is an appealable decree and when after the
Judgment and Decree passed in C.S. No.471 of 2022 against the
defendant, she (defendant) has challenged the same preferring the 1st
Appeal vide R.F.A. No.11 of 2024 as per Section 96 read with Order 41,
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Rule 1 of the CPC, 1908 and when the plaintiff (petitioner) is contesting
that R.F.A. No.11 of 2024 filed against him by the defendant and when
there is scope under law with the plaintiff (petitioner) to raise his
contentions, those were raised in his review petition vide Review Petition
No.1 of 2024 in the said 1st Appeal vide R.F.A. No.11 of 2024, as the 1st
Appeal is the continuation of the suit, then, at this juncture, by applying
the principles of law enunciated in the ratio of the aforesaid decisions
referred in Para No.13 of this Judgment, the revision filed by the
petitioner (plaintiff) challenging the rejection of his review petition
cannot be entertainable under law. For which, the decisions relied by the
learned counsel for the petitioner indicated above in Para No.8 have
become inapplicable to this revision on facts and law as narrated above.
15. Therefore, there is no merit in this revision filed by the petitioner
(plaintiff). The same must fail.
16. In result, this revision filed by the petitioner (plaintiff) is dismissed
on contest.
17. As such, this revision is disposed of finally.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
22.08.2025//Rati Ranjan Nayak//
Senior Stenographer
Signature Not Verified
Digitally Signed
Signed by: RATI RANJAN NAYAK
Reason: Authentication
Location: High Court of Orissa, Cuttack, India.
Date: 25-Aug-2025 16:08:50
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