S.B Sinha, J.— Leave granted.
2. Both these appeals being interrelated were taken up for hearing together and are being disposed of by this common judgment.
Background facts
3. The appellant is the owner of a premises situate at 77/1, Hazra Road, in the town of Kolkata. The father of Respondents 1 and 2, Manick Chandra Das (since deceased) was inducted in the said tenancy on 1-4-1959 for a tenure of 15 years. On the expiry of the period of lease by efflux of time, the appellant herein filed Title Suit No. 105 of 1975 in the Court of IIIrd Munsif, Alipore, for his eviction. The original tenant died during the pendency of the suit, whereupon Respondents 1 and 2 and their mother were substituted in his place. The said suit on transfer was renumbered as Title Suit No. 412 of 1977. During pendency of the said suit, the parties entered into settlement pursuant whereto three purported agreements for sale were executed whereby the appellant agreed to sell the suit premises to Respondents 1 and 2 and their mother. The appellant herein also filed an application for grant of income tax clearance certificate in terms of Section 280-A of the Income Tax Act, 1961. Allegedly, on the ground that Respondents 1 and 2 and their mother failed to send the draft deeds of sale to the appellant within the stipulated time despite notices served on them in that behalf, the said agreements were cancelled by the appellant on 1-6-1990. The mother of Respondents 1 and 2 died.
4. On or about 31-10-1990, Respondents 1 and 2 filed a suit before the IXth Assistant District Judge, Alipore, against the appellant for specific performance of the aforementioned three agreements, which was marked as Title Suit No. 49 of 1990. In the said suit, Respondents 1 and 2 herein filed an application for injunction restraining the appellant herein from alienating the suit premises. The appellant filed her written objection specifying the grounds of cancellation thereof. No reply thereto was filed by Respondents 1 and 2. They filed an application in the Court of Ist Munsif in the said Title Suit No. 412 of 1977 for marking the appellant's aforementioned written objection as exhibit to prove cancellation of agreements so as to enable them to contend that the suit premises had vested in the State of West Bengal in terms of the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. According to the appellant herein such a stand was taken by the respondents as existence of the said agreements negated their said defence. The said written objection was marked as Ext. R in the said suit.
5. It is not in dispute that the said suit was decreed and the matter ultimately came up before this Court in Ashish Kumar Das v. Rekha Mukherjee. By an order dated 18-10-2000, this Court while dismissing the application for grant of special leave recorded an undertaking given on behalf of the appellant herein not to execute the decree passed in Title Suit No. 412 of 1977 till the decision of Title Suit No. 49 of 1990. Meanwhile, Respondents 3 and 4 herein, who are wives of Respondents 1 and 2 respectively, were permitted to be impleaded as parties in the suit on the premise that they were nominees in respect of half of their share in the agreement.
6. On or about 18-11-2000, an application was filed by the appellant herein before the IXth Senior Civil Judge, Alipore, purported to be in terms of Order 12 Rule 6 of the Code of Civil Procedure (for short CPC) for dismissing the said suit for specific performance of contract on the premise that by adopting the contention of the appellant herein that the said agreements for sale stood cancelled, they had admitted the truth of all her assertions including the one that such cancellations of agreements were valid. The said suit for specific performance of contract was dismissed by the IXth Senior Civil Judge, Alipore, in terms of Order 12 Rule 6 CPC purported to be on admission on the part of Respondents 1 and 2. Being aggrieved by and dissatisfied therewith, Respondents 1 and 2 filed an application for review of the said judgment and decree and by an order dated 15-7-2002, the learned IXth Senior Civil Judge allowed the said review petition which was marked as Misc. Case No. 1 of 2002, in part, stating:
“Accordingly, I arrive at the conclusion that there has been an error or omission while passing the impugned Order No. 179 dated 20-12-2001 of TS No. 49 of 1990 by omitting to spell out as to whether the earnest money should be refunded or forfeited. This is an error on the face of the record, which can be rectified by passing necessary order in this regard after hearing both sides. So review lies. Therefore, I hold that the application under Order 47 Rule 1 CPC is liable to be allowed.
Court fee as paid is correct.
Hence, it is ordered.
That Misc. Case No. 1 of 2002 is allowed on contest without costs. Necessary order will be passed in TS No. 49 of 1990 regarding reopening of Order No. 179 dated 20-12-2001 of that suit in the light of this judgment/order.”
7. The appellant herein preferred an appeal thereagainst before the High Court of Judicature at Calcutta which was marked as First Miscellaneous Appeal No. 2817 of 2002. The respondents also filed an appeal being First Appeal No. 124 of 2003 before the High Court allegedly suppressing the fact that the decree dismissing Title Suit No. 49 of 1990 had been partly set aside on the basis of the review application filed by the respondents herein. The respondents also filed cross-objections in the said First Miscellaneous Appeal No. 2817 of 2002. Admittedly, all the three matters were directed to be heard analogously. By reason of an order dated 31-3-2004, the High Court allowed First Miscellaneous Appeal No. 2817 of 2002 filed by the appellant herein and dismissed the respondents' cross-objection as not pressed. However, by the impugned judgment dated 22-9-2004, First Appeal No. 124 of 2002 filed by the respondents herein was allowed.
Execution proceeding
8. In the meanwhile, the appellant herein had filed an execution petition for executing the decree passed in the said Title Suit No. 412 of 1977. Respondents 1 and 2 applied for stay of execution thereof on the ground that their suit for specific performance of contract had been restored as the review application filed by them was in the meanwhile allowed in part. In view of the fact that the undertaking was given by the appellant herein, the executing court gave liberty to the parties to approach this Court for obtaining a clarification as to whether the appellant's undertaking subsisted after dismissal of Title Suit No. 49 of 1990. On such an application having been made, this Court in Rekha Mukherjee v. Ashish Kumar Das (2004) 1 SCC 483 allowed the same, observing:
“16. An undertaking of this nature furthermore must be construed in favour of the person giving such undertaking. It should not be stretched too far. A party giving an undertaking is bound thereby but by reason thereof, the same cannot be given a meaning whereby the scope and extent thereof is enlarged.
17. Had the intention of the parties been that ‘decision in the suit’ would mean a ‘final decision’ therein, which may include final determination of the dispute up to this Court, it could have been stated so specifically. In our opinion, in such an event, a strained meaning will have to be put which was not the intention of the appellant. If that was the intention of the appellant, the question of this Court making observations to facilitate early disposal of the suit would lose all relevance.
18. The title suit is pending decision only for a limited purpose, namely, for refund of the earnest money. The substantive prayer of the respondents for review of the judgment and decree passed by the trial court, therefore, has not been accepted. The court has not granted a decree for specific performance of the contract. The question of eviction of the respondents in execution of the decree passed in Title Suit No. 412 of 1977 had only a direct relationship with the right of the respondents to continue to possess the tenanted premises in furtherance of their plea of part-performance of the terms and conditions of the agreement for sale. Such a right claimed by the respondents herein to continue to possess the same on the basis of her independent right in terms of Section 53-A of the Transfer of Property Act had been negatived by the court. The respondents cannot resist their eviction pursuant to or in furtherance of the decree for eviction passed against them in execution proceedings thereof.”
Third-party claim
9. Respondents 3 and 4, it may be noticed at this juncture, had set up a case of fresh agreement for sale by and between the parties herein after the death of the mother of the plaintiffs (Respondents 1 and 2), Smt Gouribala Das, on 23-9-1990 in the following terms:
“That thereafter Respondents 1 and 2 filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint in their suit for specific performance/injunction i.e Title Suit No. 49 of 1990 on 2-1-1990. By the said application for amendment, Respondents 1 and 2 herein, the applicants proposed to include the names of their wives as co-plaintiffs; because in the meantime, the mother of the plaintiffs (Respondents 1 and 2) Smt Gouribala Das died on 23-9-1990 and eventually thereafter whereupon the petitioner herein upon fresh negotiation and after alleged cancellation of the earlier agreements for sale, once again agreed to sell the entire disputed suit premises in favour of all the respondents herein, having 1/4th share each, and accordingly four number of draft deeds of sale were prepared, which were handed over to the petitioner and her son, Mr Santanu Mukherjee, Advocate, Calcutta High Court for approval and necessary submission before the Income Tax Authorities for obtaining prior clearance as it was required at the relevant time under the provisions of the Income Tax Act….”
10. Despite the same Respondents 3 and 4 filed application under Order 21 Rules 95, 97 to 101 read with Section 47 of the Code of Civil Procedure on the premise that they were not bound by the decree passed against Respondents 1 and 2 and prayed for stay of the execution, but the executing court did not grant any interim stay. The said Misc. Case No. 52 of 2003 was also dismissed by an order dated 25-8-2004. Although the executing court allowed the appellant's application for issuance of a writ for delivery of possession; but the same was not actually issued. As the appellant herein filed an application marked as CO No. 3229 of 2004 before the Calcutta High Court for direction upon the respondents herein for issuance of such a writ but by reason of the impugned order dated 14-10-2004, the said application was dismissed. The appellant is, thus, before us.
Submissions
11. Mr Santanu Mukherjee, learned counsel appearing on behalf of the appellant, in assailing the judgment and order dated 14-10-2004 in Civil Appeal No. 39 of 2005, would submit that the High Court committed a serious error in entertaining the respondents' first appeal inasmuch as at the time of filing thereof, the original decree stood modified in terms of the order passed in the review petition. Reliance, in this connection, has been placed on Gour Krishna Sarkar v. Nilmadhab Saha (1922) 36 Cal LJ 484. The learned counsel would contend that the High Court also erred in entertaining the said appeal after passing of the said order dated 15-7-2002 on the premise that the respondents could appeal in anticipation. Reliance, in this behalf, has been placed on Garikapatti Veeraya v. N. Subbiah Choudhury 1957 SCR 488, AIR 1957 SC 540. Mr Mukherjee would urge that as rights had accrued to the appellant in view of the dismissal of the review petition, the High Court could not have allowed the respondents to withdraw the review application once the appeal was filed by the appellant against the order dated 15-7-2002 setting aside the decree passed in the suit for specific performance of contract in part. It was submitted that the High Court even could not have permitted the respondents to withdraw their review application in view of the fact that the suit was restored for the limited purpose of considering as to whether the earnest money paid by them should be refunded or forfeited. Reliance, in this connection, has been placed on K.S Bhoopathy v. Kokila (2000) 5 SCC 458, (2000) 3 SCR 1168. In any event, as the respondents have filed a cross-objection in the said appeal filed by the appellant herein, the High Court erred in reversing the trial court's decree upon its purported revival on the respondents' withdrawing their review application although they did not prefer any appeal from it thereafter. Reliance on the said proposition has been placed on Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774, (1975) 3 SCR 942.
12. The learned counsel would contend that filing of an application for grant of income tax clearance certificate would not give rise to a new agreement and, thus, the High Court committed a manifest error in holding that the appellant is bound thereby. The learned counsel, in this connection, relied upon Indira v. ITO (1984) 150 ITR 351 (Kant) and Immudipattam Thirugnana S.O Kondama Naik v. Periya Dorasami (1900) 28 IA 46, ILR (1901) 24 Mad 377.
13. Mr Mukherjee submitted that the judgment and order dated 20-12-2001 passed by the learned trial court dismissing the respondents' suit for specific performance of contract was correct as the respondents herein adopted her contention in the written objection filed in the suit that the agreements stood validly cancelled. Such an admission according to Mr Mukherjee must be read as a whole and having regard to the fact that such admission on the part of the respondent made by adoption in one suit without any reservation was admissible in evidence in the other suit.
14. Mr G.L Sanghi, the learned Senior Counsel appearing on behalf of the respondents, on the other hand, would contend that the learned trial court having dismissed the suit for specific performance of contract, an appeal thereagainst was maintainable in terms of Order 96 CPC. The learned counsel submitted that despite the order dated 15-7-2002 granting a limited review as the suit for specific performance of contract stood dismissed, no objection as regards the maintainability of the appeal could be raised by the appellant. Mr Sanghi would urge that in any event the appeal became maintainable after the review petition was permitted to be withdrawn.
15. The learned counsel argued that in view of the fact that the judgment and order passed by the learned trial Judge purported to be in terms of Order 12 Rule 6 CPC being per se bad in law, no technicality should be allowed to come in the way of the respondents' right to pursue the suit for specific performance of contract as otherwise the same would cause manifest injustice to them. The learned counsel would further urge that keeping in view the fact that this Court in its judgment and order dated 18-11-2003 in Rekha Mukherjee (2004) 1 SCC 483 has clearly held that the undertaking was operative till the decision of the suit, in view of the judgment and order dated 22-9-2004 passed by the High Court in First Appeal No. 124 of 2003, the suit for specific performance of contract being Title Suit No. 49 of 1990 having been revived, the undertaking would also revive.
16. The primal question which falls for our consideration in these appeals is as to whether the High Court was justified in entertaining the first appeal filed by the respondents herein against the original judgment and decree passed in Title Suit No. 49 of 1990 for specific performance of contract.
Scope of review
17. The suit filed by the respondents for grant of specific performance of contract was dismissed. The said decree although was appealable but in view of the order dated 15-7-2002, the said decree in its entirety ceased to operate. Order 47 Rule 1 CPC postulates filing of an application by a person considering himself aggrieved, by a decree or order from which an appeal is allowed but from which no appeal has been preferred, to file an application if he desires to obtain a review from a decree passed against him. An appeal during the pendency of the review petition was, therefore, not maintainable. In terms of Order 47 Rule 4, the court may either reject or grant an application for review. In case a review is rejected, the order would not be appealable whereas an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Rule 8 of Order 47 CPC postulates that when an application for review is granted, a note thereof shall be made in the register and the court may at once rehear the case or make such order in regard to the rehearing as it thinks fit.
18. In Hameed Joharan v. Abdul Salam (2001) 7 SCC 573 whereupon reliance has been placed by the respondents, this Court while interpreting the provisions of Article 136 of the Limitation Act observed:
“34. Be it noted that the legislature cannot be subservient to any personal whim or caprice. In any event, furnishing of engrossed stamp paper for the drawing up of the decree cannot but be ascribed to be a ministerial act, which cannot possibly put under suspension a legislative mandate. Since no conditions are attached to the decree and the same has been passed declaring the shares of the parties finally, the Court is not required to deal with the matter any further — what has to be done — has been done. The test thus should be — has the Court left out something for being adjudicated at a later point of time or is the decree contingent upon the happening of an event — i.e to say the Court by its own order postpones the enforceability of the order — in the event of there being no postponement by a specific order of the Court, there being a suspension of the decree being unenforceable would not arise. As a matter of fact, the very definition of decree in Section 2(2) of the Civil Procedure Code lends credence to the observations as above since the term is meant to be ‘conclusive determination of the rights of the parties’.”
19. In Ratansingh v. Vijaysingh (2001) 1 SCC 469 it was held that in order that a decision should become a decree there must be an adjudication in a suit wherein the rights of the parties as regards all or any of the matters in controversy in the suit must have been determined and such determination must be conclusive in nature.
20. The said decisions are not applicable in the instant case.
21. From a bare perusal of the order dated 15-7-2002 passed by the learned trial Judge in Misc. Case No. 1 of 2002, it would be evident that he had arrived at a conclusion that there had been an error or omission had crept in the judgment dated 20-12-2001 as he had omitted to spell out as to whether the earnest money should be refunded or forfeited. The learned Judge found that there was an error on the face of the record which could be rectified by passing the necessary order in that regard after hearing both the sides. He, therefore, while upholding that the review petition was maintainable allowed the said application under Order 47 Rule 1 CPC. He had thereafter passed an order restoring Title Suit No. 49 of 1990 to its original file and number by order dated 15-7-2002.
22. In view of the aforementioned order, the original decree dated 20-12-2001 did not survive.
Maintainability of appeal
23. An appeal preferred against the said order dated 15-7-2002 by the appellant herein was maintainable in terms of Order 47 Rule 7 CPC. However, no cross-objection was maintainable at the instance of the respondents.
24. The respondents did not file any application for withdrawing the review petition before the High Court. Had such an application been filed, the High Court would have applied its mind as regards existence of the grounds therefor. Such application of mind on the part of the High Court was imperative as in the meantime a third-party interest was created.
25. In K.S Bhoopathy (2000) 5 SCC 458, (2000) 3 SCR 1168 this Court held:
“13. The provision in Order 23 Rule 1 CPC is an exception to the common-law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23 Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order 23 Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases.”
26. Before the High Court, the cross-objection filed by the respondents was not pressed. The appeal preferred by the appellant herein was allowed. It was, therefore, stricto sensu not a case where a prayer was made for withdrawing the application for review so as to render the decree wide open to challenge in an appeal under Section 96 CPC. A respondent may concede that the appeal filed by the appellant may be allowed or his cross-objections may be dismissed but if he intends to withdraw his suit or review application and that too at the appellate stage, he must make out proper grounds therefor so as to enable the court to apply its own mind thereupon. Order 23 Rule 1 CPC confers a discretionary jurisdiction on the court. Although Order 23 Rule 1 ipso facto is not applicable to a review petition, the principles analogous thereto would be, in terms whereof an order directing withdrawal of such a suit or abandonment of part of claim may be allowed only when the court is satisfied that one or the other conditions specified in sub-rule (3) of Rule 1 are satisfied. In terms of sub-rule (4) thereof, the plaintiff shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
27. Such an application in the peculiar facts and circumstances of the case even might not have been entertained by the High Court.
28. In Sushil Kumar Sen (1975) 1 SCC 774, (1975) 3 SCR 942 Mathew, J. considered the effect of allowing an application for review of a decree holding that the same would amount to vacating the decree passed, stating:
“2. It is well settled that 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 (see Nibaran Chandra Sikdar v. Abdul Hakim AIR 1928 Cal 418, Kanhaiya Lal v. Baldeo Prasad ILR (1906) 28 All 240, 1905 AWN 265, Brijbasi Lal v. Salig Ram ILR (1912) 34 All 282 and Pyari Mohan Kundu v. Kalu Khan ILR (1917) 44 Cal 1011).
3. 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. When it filed Appeal No. 81 of 1962, before the High Court, it could not have filed an appeal against the decree dated 18-8-1961 passed by the Additional District Judge as at that time that decree had already been superseded by the decree dated 26-9-1961 passed after review. So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross-appeal. Since no appeal was preferred by the respondent against the decree passed on 18-8-1961 awarding compensation for the land at the rate of Rs 200 per katha, that decree became final. The respondent made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again.”
29. Our attention has been drawn to the following regretful concurring opinion of Krishna Iyer, J. by Mr Sanghi:
“6. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. In the present case, almost every step a reasonable litigant could take was taken by the State to challenge the extraordinary increase in the rate of compensation awarded by the civil court. And, by hindsight, one finds that the very success, in the review application, and at the appellate stage has proved a disaster to the party. Maybe, Government might have successfully attacked the increase awarded in appeal, producing the additional evidence there. But maybes have no place in the merciless consequence of vital procedural flaws.”
but this Court is bound by the ratio decidendi of a decision and not mere observations.
30. It is interesting to note that although the learned Judge hoped that Parliament would consider the wisdom of making the judge, the ultimate guardian of justice by a comprehensive, though guardedly worded, provision where the hindrance to rightful relief relates to infirmities, even serious sounding in procedural law but Parliament has failed to respond thereto.
31. The doctrine of eclipse has no application in a case of this nature. An appeal preferred in terms of Section 96 CPC must conform to the requirements contained in Order 41 thereof. An appeal at the time of its filing would either be maintainable or would not be. The High Court, with respect, was not correct in holding that such an appeal could be filed in anticipation. If such a procedure is contemplated in the law the respondents herein might not have filed the substantive appeal or would have prayed for withdrawal of the review application before the trial court itself. Having filed a review application on legal advice and having succeeded therein in part, it was not open to it to prefer an appeal against the entire decree dated 20-12-2001 whereby the suit in its entirety was dismissed. The respondents could have only preferred appeal only from that part of the decree in respect whereof review was not granted. In a suit for specific performance of contract, a prayer in the alternative is ordinarily made to the effect that in the event the court declines to grant a decree for specific performance of contract, it may direct refund of the earnest money with interest.
32. The right of review is a statutory right. Such right can be invoked if the conditions therefor are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review.
33. In Garikapatti Veeraya 1957 SCR 488, AIR 1957 SC 540 this Court held: (SCR p. 547)
“Considering the question on principle, an appeal is a proceeding by which the correctness of the decision of an inferior court is challenged before a superior court. A right of appeal therefore can arise by its very nature only when a decision by which a litigant is aggrieved is given, and it sounds paradoxical to say that it arises even before judgment in the case is pronounced.”
34. In Gour Krishna Sarkar (1922) 36 Cal LJ 484 Asutosh Mookerjee, J. speaking for a Division Bench opined that the court is competent to determine whether when a review is granted, the case should be reopened in part or in its entirety, and that the view cannot be supported on principle that whenever an application for review is granted, the entire case must of necessity be reopened and reconsidered. It was observed that when a review is made, the original decree ceases to exist as a result of the decision of the judge to grant the application for review.
35. We are, therefore, of the opinion that the High Court was not correct in holding that the first appeal filed by the respondents was maintainable. This order may cause injustice to the respondents but it is their own creation. This Court despite sympathy, as was in the case of Sushil Kumar Sen (1975) 1 SCC 774, (1975) 3 SCR 942 cannot hold in their favour ignoring the binding precedents.
36. The respondents herein cannot take advantage of their own mistake. They had furthermore been taking inconsistent and contradictory stands. They had claimed possession of the suit premises as a tenant in furtherance of a part-performance of contract in terms of Section 53-A of the Transfer of Property Act and also the title having vested in the State of West Bengal in terms of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981.
37. For the views we have taken, it is not necessary for us to go into the larger question as to whether the suit itself could have been dismissed in terms of Order 12 Rule 6 CPC or not.
Execution case
38. In view of the aforementioned findings, the decree passed in Title Suit No. 49 of 1990 having regard to our decision in Rekha Mukherjee v. Ashish Kumar Das (2004) 1 SCC 483 has become enforceable. The submission of Mr Sanghi to the effect that the undertaking given by the respondents has revived is stated to be rejected. The undertaking given by the appellant is analogous to an interlocutory injunction restraining her from executing the decree till the respondents' suit for specific performance was decided by the trial court as this Court held that the said undertaking cannot be revived after the party giving it has been released therefrom. (See Cutler v. Wandsworth Stadium Ltd. (1945) 1 All ER 103 (CA))
Conclusion
39. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. The appeals are allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.