Summary
An appeal directed only against refusal of review did not permit appellate reconsideration of the unchallenged underlying writ judgment. Article 142 relief to add that challenge was refused given the unexplained prolonged omission. No apparent factual or legal error justified review, and the possession finding in the ceiling proceedings could not be examined afresh as on appeal.
Issues
- Whether an appeal against review dismissal allowed examination of an unchallenged main judgment and whether review grounds were established.
Provisions considered
- Order XLVII Rule 1, Code of Civil Procedure, 1908The asserted mistake had to be apparent on the record; review could not reopen the possession finding through a fresh appellate assessment. (¶ 16–27)
Held
- The main writ judgment had not been challenged, either separately or in the appeal. Reference in the list of dates did not establish such a challenge, so scrutiny was confined to the review order. (¶¶ 9–11, 18, 23–25)
- Extraordinary relief to permit challenge to the main judgment was refused: no explanation was offered for almost eleven years’ omission, no legal impediment existed, and even the 2010 challenge to the review order had omitted the main judgment. (¶ 12–15)
- The High Court had found that possession was taken in 1982 and the writ petitioner failed to prove possession when repeal took effect. No apparent error within review jurisdiction was shown, and that factual question could not be tried de novo in review. The Court did not reconsider the main judgment as an appellate court. (¶ 19–28)
Result
Appeal dismissed; High Court’s refusal of review upheld.