Sanjay Misra, J. - (1.) HEARD Sri S.K. Mishra, learned Counsel for the appellant and Sri Yogesh Agarwal, learned Counsel for the respondent.
(2.) LEARNED Counsel for the appellant has referred to paragraph 11 of the affidavit No. 231567 of 2009 to pray that the First Appellate Court be directed to decide the review application and this Second Appeal be taken up thereafter. The contents of paragraph 11 of the said affidavit are quoted hereunder: That in reply to the contents of paragraph No. 11 of the said affidavit it is submitted that the second appeal is maintainable before the Hon'ble Court and the Hon'ble Court may be pleased to direct the review application be decided first before taking up the second appeal. It is submitted that there is no merit in the application and is liable to be rejected by this Hon'ble Court. Sri Yogesh Agarwal has contested the submission to state that when this Second Appeal has been filed against the judgment and decree dated 08.12.2005 the appellant could not maintain the review application before the First Appellate Court.
(3.) LEARNED Counsel for the appellant has submitted that the judgment and decree of the First Appellate Court was dated 08.12.2005. Against the said judgment and decree the appellant filed a review application on 04.01.2006 and subsequently preferred this Second Appeal on 16.01.2006 even though the review application filed prior to filing of this appeal had not yet been decided. In favour of his submission learned Counsel has referred to a full bench decision of the Hon'ble Supreme Court in the case of Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh reported in : AIR 1964 SC 1372 and places reliance on paragraph 8 of the said judgment. Paragraph 8 of the judgment is quoted hereunder: (8) Order XLVII Rule 1(1) of the Civil Procedure Code permits an application for review "being filed from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of Order XLVII Rule 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Courts as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of Order XLVII Rule 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. 6. He has further placed reliance on a full bench decision of this Court in the case of Behari Lal and Anr. v. M.M. Gobardhan Lal and Ors. reported in : AIR (35) 1948 Allahabad 353 and places reliance on paragraph 30, 38 & 57 to state the the full bench considered the question whether the filing of an appeal subsequent to filing an application for review makes the hearing of the review application incompetent. He states that the full bench answered the aforesaid referred question in the negative whereby contending that an appeal filed subsequent to a review application would not make the review application incompetent. 7. Sri Yogesh Agarwal, learned Counsel for the respondent has placed reliance on a decision of the Hon'ble Supreme Court in the case of Kabari Pvt. Ltd. v. Shivnath Shroff and Ors. reported in : AIR 1996 SC 742 and places reliance on paragraph 22 of the judgment. Paragraph 22 of the judgment is quoted hereunder: 22. In our view, there is force in the contention of the learned Counsel for the appellants that the expression "from which an appeal is allowed" appearing in Clause (1) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1(a) that before making the review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken. 8. He has also referred to a decision of the Hon'ble Supreme Court in the case of Jai Narain Parasrampuria (Dead) and Ors. v. Pushp Devi Saraf and Ors. reported in : 2006 (7) SCC 756 and emphasizes on paragraph 33 to 37. He has submitted that by applying the procedural law like principle of estoppal or acquiescence, the Court will be concerned with the conduct of a party for determining as to whether he can be permitted to take a different stand in a subsequent proceeding and states that on the aforesaid principle a person may not approbate and reprobate since he had a choice between two courses of conduct and it is to be treated as having made an election from which he cannot resile. He further clarifies that the appellant having elected a course at the first instance and with which his subsequent conduct is inconsistent, he would be estopped from pursuing the remedy. 9. Having considered the submission of learned Counsel for the parties at the outset in so far as the decision of the Hon'ble Supreme Court in the case of Jai Narain Parasrampuria (Dead) and Ors. v. Pushp Devi Saraf and Ors., is concerned the Hon'ble Supreme Court was considering the application of the procedural law like principle of estoppal and acquiescence in a dispute which related to a plea that the property did not vest as there was a statutory embargo in that behalf and it would be another thing to say that a person is estopped from raising a question of title. The question whether a person may approbate or reprobate is a conduct to be seen with relevance to the 'Lis' between the parties where the said principles would be attracted. 10. In so far as the reference placed by Sri Agarwal in the case of Kabari Pvt. Ltd. (supra) is concerned it will be seen that the Hon'ble Supreme Court has clearly held that filing of an application for review under Order 47 Rule 1 C.P.C. has to be construed liberally and before any review application is made, it should be ascertained that no superior Court has been moved for setting aside the same judgment or for the same relief as claimed in the review application. The Supreme Court found that for the same relief two parallel proceedings before two forums are not permitted. In the present case the circumstances falls clearly within the ambit of the decision of the Hon'ble Supreme Court since the review application was filed on 04.01.2006 and the Second Appeal was presented on 16.01.2006. Consequently, the review application cannot be rejected on that ground particularly in view of the right of the appellant to move for review under Order 47 Rule 1 C.P.C. 11. In the full bench decision of this Court in Behari Lal and Anr. (supra) the question referred to the full bench as to whether filing of an appeal subsequent to filing of an application for review makes hearing of the review application incompetent has been answered in negative thereby the review application cannot become incompetent only on the fact that an appeal against the judgment was filed subsequently. Consequently, the submission of Sri Agarwal that the review application cannot be sent back to the First Appellate Court for decision cannot be accepted. 12. In the case of Tungbhadra Industries Ltd. (supra) the full bench of the Hon'ble Supreme Court has clearly laid down that the Order 47 Rule 1 C.P.C. permits an application for review being filed from a decree or order from which an appeal is allowed but from which no appeal has been preferred. The aforesaid provision was clearly interpreted by the Hon'ble Supreme Court and it was held that on the date when the review application was filed the appellant had not filed any appeal and, therefore, in terms of Order 47 Rule 1 there was no obstacle for the review application from being entertained. 13. It is the date when the review application is filed and if on that date no appeal has been filed it is competent for the Court to dispose of the review application on merits notwithstanding the pendency of the appeal which was filed subsequently. However, an exception has been drawn out to the effect that in case the review application has not been finally decided and the appeal itself has been disposed, the jurisdiction of the Court to hear a review application would come to an end. 14. From the aforesaid law it is quite clear that the filing of a review application under Order 47 Rule 1 C.P.C. before filing an appeal from a decree or order from which an appeal is allowed would not debar the Court from hearing the review application on merits. Consequently, the submission made by Sri Agarwal to the contrary cannot be accepted. 15. The submission of learned Counsel for the appellant has substance since the review application was filed prior to filing of this Second Appeal and this Second Appeal is still pending and has not been disposed of. 16. Let the record of the lower Court along with said review application be transmitted to the lower Court forthwith. Upon decision of the review application the lower Court should send the record back to this Court.;