Lata Khandelwal vs Gopal Baruah
2021 Latest Caselaw 3406 Gua

                                                                                Page No.# 1/2

GAHC010225872018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP/169/2018

            LATA KHANDELWAL
            WIFE OF SHRI PRADEEP KHANDELWAL, REP. BY HER HUSBAND AND
            ATTORNEY HOLDER- SHRI PRADEEP KHANDELWAL, SON OF SHRI RATAN
            LAL KHANDELWAL, R/O- DWARKADISH BUILDING, A.T. ROAD, NEAR
            RAILWAY GATE NO. 5, P.O. GUWAHATI- 781001, ASSAM.



            VERSUS

            GOPAL BARUAH
            SON OF LATE RADHA KANTA BARUAH, R/O. HOUSE NO. 238, CHANDMARI
            COLONY, NIZARAPAR, P.O. SILPUKHURI, GUWAHATI- 781003, DIST.
            KAMRUP(M), ASSAM.



Advocate for the Petitioner   : MR J C GAUR

Advocate for the Respondent : MR. N ZAMAN




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

10-12-2021 Heard Mr. J.C. Gaur, learned counsel appearing on behalf of the petitioner and Mr. A. Ganguly, the learned counsel appearing on behalf of the respondent.

This proceedings under Section 115 of the Code of Civil Procedure read Page No.# 2/2

with Article 227 of the Constitution of India is challenging the order dated 29.08.2018 whereby the review application filed by the petitioner was dismissed and the Judgment and Decree dated 05.03.2018 passed in Title Suit No. 53/2016.

It is no longer res integra that upon a dismissal of a review application, the order sought to be reviewed comes into existence. In fact, the challenge in the instant proceedings is a challenge to the Judgment and Decree dated 05.03.2018 passed by the Civil Judge, Kamrup (Rural) in Title Suit No. 53/2016.

As an appeal lies under Section 96 read with Order XLI of the Code of Civil Procedure, 1908, the jurisdiction under Section 115 of the Code of Civil Procedure as well as the jurisdiction under Article 227 of the Constitution of India cannot be invoked.

Under such circumstances, the instant petition is dismissed as not maintainable.

Taking into consideration that the petitioner had filed the instant application on 03.10.2018, the period from the date of filing of the instant petition till today shall be excluded in computing the period of limitation in filing the appeal, if the petitioner so desires.

JUDGE

Comparing Assistant