Legality Of Main Order Cannot Be Challenged In An Appeal Filed Only Against Review Order: SC [Read Judgment]
“This appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court."
The Supreme Court observed that legality of a main order passed by the High court cannot be examined in an appeal filed only against the order passed in review petition.
In this case, the High court has dismissed the writ petitions filed by one Asharfi Devi challenged the ceiling proceedings against her. Review petitions filed against this was also dismissed by the High court.
The bench comprising of Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari noted that the writ petitioner never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition but confined her challenge only to the order dated 16.12.2008 passed in the review application.
Though Senior Advocate Jayant Bhushan, requested the court to invoke Article 142 of the Constitution, the bench declined on the ground that appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the main order. It said:
We find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants (legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal.
The court then proceeded to hear the matter and agreed to examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order. Dismissing the SLP, the bench said:
Having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction.