Summary
A borrower who unconditionally withdrew his special leave petition against a High Court order in a SARFAESI matter, without liberty to re-approach the Court, then sought review in the High Court and filed fresh appeals against both the original order and the review dismissal. The Supreme Court held both appeals not maintainable, applying Upadhyay & Co. and the public policy behind Order XXIII Rule 1 CPC, and noting that no appeal lies against rejection of review under Order XLVII Rule 7(1) CPC.
Issues
- Whether a second special leave petition lies against a High Court order when the earlier special leave petition against the same order was withdrawn unconditionally, without liberty to file afresh or to seek review.
- Whether an appeal lies against an order of the High Court dismissing a review petition.
- Whether the pending reference in S. Narahari v. S.R. Kumar, or the decisions in Kunhayammed and Khoday Distilleries, assisted the appellant.
Provisions considered
- Article 136, Constitution of IndiaThe broad discretionary power under Article 136 was held to apply to a first challenge to an order, not to a renewed challenge after the earlier special leave petition was withdrawn without permission to re-approach the Court. (¶¶ 9, 10, 26, 35)
- Order XXIII Rule 1, Code of Civil Procedure, 1908The bar on a fresh suit after withdrawal without leave rests on public policy; following Upadhyay & Co. and Sarguja Transport Service, the Court applied the same principle to special leave petitions under Article 136. (¶¶ 21, 22)
- Order XLVII Rule 7(1) and Section 114, Code of Civil Procedure, 1908An order rejecting review is not appealable; since rejection leaves the reviewed order unchanged and there is no merger, the aggrieved party must challenge the original order, not the rejection. (¶¶ 7, 23, 24)
- Section 13(4), Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002The bank had taken measures under Section 13(4) after classifying the loan as NPA; the High Court allowed instalment payment, and the merits, including the MSME notification argument, were not reached because the appeals were not maintainable. (¶¶ 1, 2, 13, 14)
Held
- A party who elects not to pursue an earlier special leave petition and withdraws it without leave to file a fresh one cannot file a second special leave petition against the same order; if that party then seeks review before the High Court and fails, he can challenge neither the review rejection nor the original order. (¶¶ 19, 21, 22)
- By the plain language of Order XLVII Rule 7(1) CPC, no appeal lies from an order rejecting review; rejection affirms the original order without merger, so any challenge must be to that original order. (¶¶ 23, 24)
- S. Narahari, which referred to a larger Bench the case of withdrawal with liberty to seek review, was distinguishable because the appellant obtained no liberty of any kind; Upadhyay & Co. had not been placed before that Bench and governs the present facts. (¶¶ 17, 18, 19, 20)
- Kunhayammed and Khoday Distilleries concerned the maintainability of a review before the High Court after dismissal of a special leave petition by an unreasoned order and did not consider Upadhyay & Co.; they do not permit a fresh special leave petition after unconditional withdrawal. (¶¶ 27, 28, 29, 30, 31, 32, 33)
- Entertaining such a renewed challenge would be contrary to public policy and the principle that litigation must end, and would amount to sitting in appeal over the Court's earlier order that had attained finality. (¶ 35)
Result
Preliminary objections upheld; both civil appeals dismissed as not maintainable, leaving the appellant free to pursue any remedy before the appropriate forum in accordance with law.