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Orissa High Court

Annapurna Dash & Others vs Sabitri Dash And Ors .... Opposite ... on 12 December, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

              IN THE HIGH COURT OF ORISSA AT CUTTACK


                         RVWPET No. 244 of 2022

      (An Application under Section 114 read with Order XLVII Rule-1
      of CPC)
                                 ---------------

      Annapurna Dash & Others,
                                        ......          Petitioners

                             -Versus-

      Sabitri Dash and Ors                  ....   Opposite Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________

        For Petitioner   :       Mr. D.R.Swain,
                                 Advocate for Defendant No.1-
                                 Petitioner
         For Opp. Party :        Mr. S.K.Mishra,
                                 Learned Senior counsel with
                                 P.S.Mohanty,
                                 appearing for Plaintiff

          ______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

12th December,2025

SASHIKANTA MISHRA, J.

This is an application filed under Order XLVII Rule 1 of

CPC by the petitioner seeking review of the judgment dated

22.08.2022 passed by this Court in RSA No. 41 of 2004.

1|Page

2. Review petitioner was the defendant No.1 in T.S. No.980

of 2000-1 before the Court of learned Additional Civil Judge,

(Senior Division), Balasore and respondent No.1 in RFA No.

61 of 2009 of the Court of learned District Judge, Balasore.

The suit was filed by one Gouranga Dash. Defendant No.1

had filed a counter claim in the said suit. The suit was

dismissed but the counter claim was allowed. In first appeal

preferred by the LRs of the original plaintiff, the suit was

decreed and the counter claim was dismissed. Feeling

aggrieved, defendant No.1 filed the above mentioned second

appeal.

3. A brief reference to the facts would be necessary.

The case of the plaintiff is that he and defendant No.1

are the sons of Rudra Charan Das. After death of their father,

they succeeded to his property along with their mother. Most

of the properties were jointly recorded in the major settlement

operation in their names. Even though some of the properties

were recorded in the name of their mother, the original

plaintiff and defendant No.1 possessed the same in equal

shares by amicable partition. Some of the properties were

also sold by them. The plaintiff filed the suit for partition of

the scheduled properties. The defendant No.1 took the plea

2|Page that Gouranga (original plaintiff) is not the son of Rudra

Charan and therefore, has no right over the property. He also

advanced a counter claim that the scheduled properties

exclusively belong to him. The trial Court held that the

plaintiff could not establish that he was the son of Rudra and

Chanchala. The suit was thus dismissed but the counter

claim was decreed.

4. The plaintiff preferred first appeal. Upon reappreciation

of the evidence on record, the first appellate Court found that

there was enough evidence to show that Gouranga was the

son of Rudra Charan. The findings of trial Court were thus

interfered with by setting aside the dismissal of the suit and

the counter claim was dismissed.

5. Defendant No.1 carried second appeal, which was

admitted on the following substantial question of law:

"Whether the finding of the First Appellate Court that Gouranga is the son of Rudra Charan Das is not only based on the erroneous appreciation of evidence on record but also contrary to the settled law especially when, the First Appellate Court, instead of placing the burden of proof upon the Plaintiff to establish he said fact that Gouranga is the son of Rudra Charan Das has taken the view that the burden of proof lies upon the defendants to disprove the said fact in going to held at the end that it has not been discharged by the Defendants?"

This Court, after perusing the judgments passed by the

Courts below, the pleadings and the documents admitted in

3|Page evidence found that there was overwhelming evidence that

Gouranga was the son of Rudra Charan and has been

accepted as such in several sale transactions. The judgment

of the first appellate Court was thus, confirmed and the

second appeal was dismissed.

6. Present application for review has been filed by

defendant No.1 on the ground that the finding of the first

appellate Court as well as this Court in second appeal is

erroneous being contrary to record.

7. Heard Mr. D.R.Swain, learned counsel for the

defendant No.1-petitioner and Mr. S.K.Mishra, learned Senior

counsel with Ms. P.S.Mohanty, for the plaintiffs.

8. Mr. Swain would argue that the first appellate Court

placed undue emphasis on the settlement records ignoring

the fact that the same were prepared at the instance of the

plaintiff, who was a major at that time while defendant No.1

was a minor and their mother was a pardanasin lady. Several

other properties were also not brought into the hotchpot.

Thus, in the absence of proper pleadings by the plaintiff, the

suit for partition could not have been decreed. Since this

Court did not consider the vital aspect though available on

4|Page record, the same amounts to an error apparent on the face of

the record.

9. Per contra, Mr. S.K.Mishra, learned Senior counsel

would argue that an appeal cannot be filed in the garb of

review. In the instant case, the review petitioner essentially

seeks to challenge the findings of the first appellate Court

which were confirmed by this Court in second appeal. If

aggrieved, he may challenge the same before the proper

forum but he cannot be permitted to do so by filing a review.

10. The circumstances under which a judgment passed by a

Court can be reviewed is well settled. Order XLVII Rule 1 of

CPC reads as follows:

1. Application for review of judgment.--(1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may

5|Page apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.

[Explanation.--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment].

11. It is evident that the scope of review is limited to correct

errors apparent on the face of the record, or if any new

matter or evidence which could not be discovered or

produced at the initial stage despite exercise of due diligence,

has been discovered or for any other sufficient reason. In

short, review would be permitted, if the order under review

would lead to miscarriage of justice.

12. A review cannot however, be sought for on grounds

that may be taken in an appeal. In the case of M/s.

Thungabhadra Industries Limited vrs. The Government

of Andhra Pradesh reported in AIR 1964 SC 1372, the

Supreme Court observed as follows:

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for

6|Page dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

From the proposition of law as referred, it would be apparent

that if a case has been decided after full consideration of

arguments made on behalf of a party, the party cannot be

permitted to ask for deciding the controversy already decided.

If he is aggrieved by the judgment, he may approach the

higher forum.

13. Viewed in light of the above propositions of law, this

Court finds that no case whatsoever is made out to review

the judgment passed by this Court in the second appeal. As

argued by learned senior counsel appearing for the Opposite

Party, the review petitioner has found more fault in the

judgment of the first appellate Court than any error apparent