Summary
The Supreme Court set aside a revisional order that enlarged a property decree after the trial court had rejected review on merits. Where the decree is appealable, the proper remedy is an appeal against that decree, rather than revision against refusal of review. The High Court’s modification prejudiced ordinary appeal and cross-objection rights. The plaintiff remained free to appeal with an application to condone delay.
Issues
- Whether revision should be entertained against rejection on merits of review of an appealable decree.
- How merger and ordinary appeal rights affect the exercise of revisional discretion.
Provisions considered
- Section 115, Code of Civil Procedure, 1908Although refusal of review can constitute a decided case, revision is discretionary. It should not be entertained against merits rejection of review of an appealable decree; the decree should be challenged in appeal. (¶¶ 20, 21, 22, 25, 26, 27, 28, 29)
- Order XLVII Rule 7, Code of Civil Procedure, 1908Rejection of review is not appealable, but that does not justify replacing the available appeal against the underlying decree with revision. Rejection leaves that decree intact without merger. (¶¶ 18, 19, 23, 24, 27, 28)
- Order XLI Rule 22, Code of Civil Procedure, 1908An ordinary appeal would permit the opposing party to challenge adverse findings through the statutory mechanism. Revisional alteration of the decree risked prejudicing those rights. (¶¶ 25, 27)
Held
- A decided case under Section 115 has broad meaning, but availability of revisional power does not create a right to its exercise. The court must consider alternative remedies, the nature of the order and equities. Here an appealable decree already existed when review was refused. (¶¶ 20, 21, 22)
- When review is rejected, the original decree neither changes nor merges into the rejection order. A party aggrieved by that decree should appeal it within the applicable period; diligent pursuit of review may support condonation of delay in an appropriate case. (¶¶ 23, 24, 28)
- The High Court’s revision not only set aside refusal of review but enlarged the decree from a one-sixth share to the entire property. Such modification and merger prejudiced the defendants’ appeal and cross-objection opportunities. The merits of the disputed gift and sale could instead be tested in an ordinary appeal. (¶¶ 9, 25, 26, 27, 29)
- No revision should be entertained against an order rejecting on merits review of an appealable suit decree. Setting aside the revisional order did not bar the plaintiff from appealing the trial decree and seeking condonation. (¶¶ 28, 29, 30)
Result
Defendants’ appeal allowed; High Court judgment and order set aside. Plaintiff’s right to appeal the trial decree with an application for condonation of delay preserved. Parties to bear their own costs.