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1986 DIGILAW 96 (KER)

VELUNNI v. APPU

1986-02-28

JOHN MATHEW

body1986
Judgment :- 1. The execution court entered full satisfaction of the decree and dismissed the execution petition on 27-3-1980. The decree-holder thereafter filed an application to review that order on the ground that recording of full satisfaction was made by a mistake apparent from the records, as further amounts are due from the judgment-debtors. However the execution court dismissed that application observing that there is no provision to review an order passed in an execution petition recording full satisfaction of the decree. In this Civil Revision Petition challenging that order, although the judgment-debtors accepted notice, they have not entered appearance. Therefore at my request Sri. K. T. Sankaran, Advocate appeared as amicus curiae. 2. 0.47 R.l of the Code of Civil Procedure is as follows: "l. Application for review of judgment. (l) 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 apply for a review of judgment to the Court which passed the decree or made the order." 3. From this provision it is clear that application for review can be filed against "a decree or order". The word 'decree' is defined in S.2(2) of the Code of Civil Procedure and the word 'order' is defined in S.2(4) thereof. There is no restriction that the order should be on the trial side, in order that a review application may be filed against the order. Thus on the wording of O.47 R.l CPC. a petition to review an order in execution is maintainable. 4. There is no restriction that the order should be on the trial side, in order that a review application may be filed against the order. Thus on the wording of O.47 R.l CPC. a petition to review an order in execution is maintainable. 4. Although the specific question whether any review can be filed against execution orders is not directly considered, the following judgments of different High Courts have proceeded on the basis that petition to review execution orders is maintainable: Nilratan Khasnebish v. Ram Rutton Chatterji (1900-1901) 5 Calcutta Weekly Notes 627), Kapiluddin Ahmad & others v Kumaraddin Ahmad (1910) (3) Indian Cases 148), Dhaninder v. Harihar (AIR. 1918 Patna 395), Dasiruddin Sarkar v. Elahi Bux Pramanik (AIR. 1935 Calcutta 645), Manorath v. Atmaram (AIR. 1943 Nagpur 335), P. K. Satianeson v. Sankaran Nadar (1958 KLT. 830), Nageshwar Prasad v. Lakshman Prasad (AIR. 1960 Patna 171), State of Kerala v. Sankaran Nair (1968 KLT. 576) and Lakshmanan Pillai v. Subhashini (1971 KLT 850). 5. Respectfully adopting the reasoning of the learned judges who rendered the above cited judgments, I hold that the execution court has the power to review an order passed in execution, including an order entering full satisfaction of the decree. 6. It may also be mentioned that under S.47 of the Code of Civil Procedure all questions arising between parties to the suit in which the decree was passed relating to execution, discharge or satisfaction of the decree are to be determined by the court executing the decree and not by a separate suit. Therefore the observation of the lower court that even though the petition for review is not maintainable, the petitioner may seek other remedies to realise the balance amount due from the judgment-debtor, is not correct. The CRP. is therefore allowed and the order of the execution court is set aside. The execution court is directed to consider and dispose of E. A. 445 of 1980 on merits. 7. I record my appreciation and thanks to Sri K. T. Sankaran, Advocate, who has done considerable research and ably assisted the court.