JUDGMENT
Swatanter Kumar, J.
1. By this common order, I propose to dispose of Civil Revision No. 2910 and 2911 of 1998, as they arise out of somewhat identical circumstances and impugned the same order passed by the learned Additional Civil Judge (Senior Division), Anandpur Sahib.
2. Reference to basic facts would be necessary in order to deal with the rival contentions, raised before this court, by the learned Counsel appearing for the respective parties.
3. Jagan Nath has filed a suit for declaration and permanent injunction against Som Nath and Roshan Lal, defendants-petitioners before this Court. It was prayed in the suit that the general power of attorney dated 20th July, 1992 allegedly executed by Som Nath is a forged document and, as such, is ineffective and inconsequential in the eye of law. Further relief of injunction was claimed restraining the said defendants from executing any sale deed in pursuance thereto. It was further prayed that sale deed executed by Som Nath in favour of Roshan Lal in relation to the property in dispute was ineffective and consequently did not affect the right of the plaintiff over the property in dispute. he suit was contested by the defendant. However, Som Nath did not appear inspite of service and was ordered to the proceeded against ex-parte in the suite before the learned Trial Court. Vide judgment and decree dated 29th September, 1995, the suit of the plaintiff was dismissed with costs as material issues were answered against the plaintiff.
4. An application under Order 41 Rule 1 of C.P.C. was filed by the plaintiff for reviewing the judgment and decree dated 29.9.1995. Various grounds were taken for reviewing the judgments and decree dated 29th September, 1995. However, by a detailed judgment dated 27th August, 1996, the learned Additional Civil Judge (Senior Division) Anandpur Sahib found the application for review without substance and dismissed the same.
5. Two different Civil Appeals were filed by the plaintiff-applicant being C.A. Nos. 222 and 226 of 1996. One against the judgment and decree dated 29th September, 1995 and other against the same judgment and decree and the order dismissing the review application dated 27th August, 1996. Both these appeals had obviously become barred by time, when they were filed before the learned first appellate Court. Both the above CAs. were accompanied by the applications under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The reasons given in these applications was that the appellant-applicant was pursuing the review remedy before the learned trial Court and as such the delay in filing the appeals should be condoned. Learned First Appellate Court vide orders dated 9th May, 1998 condoned the delay in filing one appeal, while treated the other appeal within limitation, giving rise to these two revisions.
6. The basic contention raised on behalf of the present petitioners is that the learned first appellate Court has incorrectly placed reliance upon the judgment of the Supreme Court in the case of Sushil Kumar Sen v. State of Bihar, A.I.R. 1975 S.C. 1185. He further submits that as this authority has no application to the facts of the present case, the application for condonation of delay ought to have been rejected. According to him, the learned first appellate court has not applied its mind to the ingredients which are required to be satisfied for condonation of such delay.
7. On the other hand, learned Counsel for the respondent has contended that the orders have been passed in exercise of judicial discretion and in consonance with the settled principle of law. As such call for no interference by this Court in exercise of its revisional jurisdiction.
8. Relevant dates are; suit was decreed by judgment and decree dated 29th September, 1995; review application was filed on 29th November, 1995; review was dismissed on 27th August, 1996 and both the appeals were presented before the learned first appellate court on 27th September, 1996. There are two aspects of this matter; one whether the principle enunciated by the Hon’ble Supreme Court in Sushil Kumar Sen’s case (supra) covers the case in the facts and circumstances of the present case and if answer to this question is in the, negative then whether there exists sufficient and reasonable cause for condonation of delay in filing the said appeals.
9. The learned First Appellate Court has relied upon the following observations of the Hon’ble Apex Court made in Sushil Kumar Sen’s case.
“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.”
10. On the basis of these observations, the learned First Appellate Court concluded that the appeals are within time because the decree, in fact, stood passed only on 27th August, 1996 and the appeals were filed on 27th September, 1996, as such, they were within time. This approach of the learned first appellate court appears to be not in consonance with the provisions of the Limitation Act and the principle enunciated by the Hon’ble Apex Court. In fact, in Sushil Kumar Sen’s case, the Hon’ble Supreme Court clearly laid down the principle as to in what circumstances, the decree would stand modified, altered or set aside in a review. It is only in those cases that the original decree stands merged in the new decree passed as a result of such modification, alteration or setting aside of the original decree and probably fresh lease of limitation would be available to the review-applicant, but where review application is dismissed without altering, changing or in any way effecting the original decree fresh lease of limitation would not become available to such party to the suit. The following language proved in the judgment of Sushil Kumar (supra) would be relevant to produce at this stage:-
“…..The respondent did not file any appeal from the decree dated 18.8.1961 awarding compensation for the land acquired at the rate of Rs. 200/- per katha. On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated.
The High Court should have allowed the cross appeal; and dismissed the appeal, which was, and could only be against the decree passed on 26.9.1961 after the review.”
11. Thus, in the facts of this case, I have no hesitation in coming to the conclusion that the appeals were not within time and rejection of the review application did not provide a new lease of limitation to the applicant. Rejection of review per se would not effect the decree in its substance or otherwise. In a case where the order of review has the effect of setting aside, modification or alteration, directly or indirectly of the original decree, it would obviously have different consequences and repercussion in law. But that is certainly not the case here.
12. Coming to the second submission, it is clear from the record that the application under Section 5 of the Limitation Act was accompanying both the appeal The reasons stated for seeking condonation of delay was that the applicant was pursuing the remedy of review for the period the delay has occurred. Learned first appellate Court while allowing the said application in substance has applied its mind for condoning the delay as well. In fact, in the impugned order, it specifically held that it was condoning the delay. As noticed above, review application was filed on 29th November, 1995 and the same was dismissed on 27th August, 1996. Thus, the period spent by the respondent in prosecuting the review application, could be excluded under the provisions of Section 14 of the Limitation Act, 1963. Even otherwise, the period for which the appeal was not preferred, the review application was pending before the learned trial court, which would certainly constitute sufficient cause for condonation of delay in filing the appeal, after dismissal of the review application. It will be more so when the legal remedy available was being bonafidely pursued by a party before court of competent jurisdiction. Remedy of review is available to a party under Order 47 Rule 1 of C.P.C. within the limitation prescribed under that provision. Thus, it cannot be said or at least taken against the applicant-plaintiff that he did not prefer the appeal earlier to the filing of the review application or till the time review application was dismissed. For these reasons, I consider, it that the learned trial Court, though has erred in principle but on facts have not fallen in error in condoning the delay.
13. Consequently, bath the revisions are dismissed with the observations that the delay in filing the appeal against the judgment and decree dated 29.9.1995 had been rightly condoned by the learned first appellate court, while the appeal against the rejection of the review application dated 27th August, 1996 would obviously be within time having presented on 27th September, 1996.