Vinodchandra Motilal Thakker v. Manilal Chhotalal — 1993 DIGILAW 392 (GUJ)

A. N. DIVECHA, J. :, J. ( 1 ) THE order passed by the learned judge of Court No. 10 of the City Civil court at Ahmedabad on 23rd January 1977 is under challenge in this appeal at the instance of the original judgment-creditor under Section 75 of the provincial Insolvency Act, 1920 (the Act for brief ). ( 2 ) THE litigation has a chequered history behind it. The predecessor-in-title of the present appellants, named, Manilal chhotalal Dhariya (the judgment-creditor for convenice) had obtained a decree in the sum of Rs. 4,070 / with interest and costs in Civil Suit No. 677 of 1968 against the present respondent (the insolvent for convenince ). The judgment-creditor filed an execution application for execution of the aforesaid decree by arrest and detention of the insolvent in the civil prison. It came to be registered as Civil darkhast No. 207 of 1968. In that darkhast the insolvent was arrested under warrant and detained in the civil prison of 23rd and 24th September 1971. He thereafter made one insolvency petition in the City Civil Court at ahmedabad for his declaration as an insolvent. It came to be registered as insolvency Petition No. 17 of 1971. He thereafter obtained his release from the civil prison by giving the required security under Section 23 of the Act. On 8th october 1973 the adjudcation order was passed against the insolvent in Insolvency petition No. 17 of 1971 and all his properties came to be vested in the official Receiver. On his examination by the Official Receiver on 3rd April 1974, the insolvent declared that he had no properties other than those mentioned in his Inslovency Petition and inventory. Later on it was found that he possessed of some three properties and he did not declare those properties to be his in his insolvency Petition; The Official Receiver thereupon submitted his report on 15th december 1969 for prosecution of the insolvent under the relevant provisions contained in Section 69 of the Act. It came to be taken on record as Exh. 66 in Insolvency Petition No. 17 of 1971. The matter appears to have been assigned to Court No. 8 of the City Civil Court for hearing. It came to be taken on record as Exh. 66 in Insolvency Petition No. 17 of 1971. The matter appears to have been assigned to Court No. 8 of the City Civil Court for hearing. By the order passed by the learned Judge thereof on 27th February 1976, a preliminary inquiry contemplated under Section 70 of the Act was ordered by issuing notice to the affected parties. The matter appears to have been assigned to Court No. 10 of the City Civil Court thereafter. It appears that the learned judge thereof, by his order passed on 15th September 1976 below Exh. 66 in insolvency Petition No. 17 of 1971, came to the prima facie conclusion that the insolvent was guilty of the offences committed by him under the relevant provisions contained in Section 69 of the act. A complaint was therefore ordered to be filed against him. It appears that the aforesaid order passed by the learned judge of Court No. 10 of the City Civil court at Ahmedabad on 15th September 1976 was suo motu reviewed by the very learned Judge by his order passed on 23rd January 1977. It appears that no notice whatsoever was caused to be issued to any one before the aforesaid order passed by the learned Trial Judge on 15th september 1976 was set aside on its review. It appears that in the meantime the original judgment-creditor had died and his heirs and legal representatives were brought on record in his place in insolvency Petition No. 17 of 1971. They were aggrieved by the aforesaid review decision of the learned Judge of Court no. 10 of the City Civil Court at ahmedabad. They have therefore preferred this appeal before this Court under Section 75 of the Act and have questioned the legality and validity of the impugned order passed by the learned trial Judge on 23rd January 1977. ( 3 ) SHRI Patel for the appellants has urged that the learned Trial Judge had no jurisdiction suo motu to review his order of 15th September 1976 below Exh. 66 in Insolvency Petition No. 17 of 1971, and in any case, the said order could not have been reviewed without issuing any notice to the present appellant. ( 3 ) SHRI Patel for the appellants has urged that the learned Trial Judge had no jurisdiction suo motu to review his order of 15th September 1976 below Exh. 66 in Insolvency Petition No. 17 of 1971, and in any case, the said order could not have been reviewed without issuing any notice to the present appellant. Shri bhatt for the respondent has on the other hand submitted that the learned Trial judge has under the impugned order corrected his error or mistake and it was within his inherent jurisdiction to do so. According to Shri Bhatt for the respondent, exercise of inherent jurisdiction would not require any notice to be served when the error is sought to be corrected. ( 4 ) SECTION 114 of the Code of Civil procedure, 1908 (the Code for brief) enables an aggrieved person to apply for a review of judgment to the Court under certain circumstances. The procedure in that regard is laid down in the relevant provisions contained in Order 47 thereof. Rule 4 (1) empowers the Court to reject the review application if no sufficient ground for a review is found. Rule 4 (2) thereof empowers the Court to accept the review application if it is of the opinion that it should be granted. That power is however subject to the rider that previous notice to the opposite party has to be served to enable him to appear and to be heard in support of the decree or order a review of which is sought by the applicant. A conjoint reading of the provisions contained in Order 47 of the code would go to show that review of a judgment or an order can be made by the Court only on the basis of an application made by an aggrieved party. It is a settled principle of law that the power of review is a creature of the statute. It is also a settled principle of law that, when a statute requires a particular thing to be done in a particular manner, it has to be done only in that manner and in no other manner. As pointed out hereinabove, the power of review is conferred on the Court under section 114 read with Order 47 of the code. It is also a settled principle of law that, when a statute requires a particular thing to be done in a particular manner, it has to be done only in that manner and in no other manner. As pointed out hereinabove, the power of review is conferred on the Court under section 114 read with Order 47 of the code. It is provided therein that review can be made only on the basis of an application for the purposes made by an aggrieved party. There is no provision either in Section 114 or in Order 47 of the Code providing for any suo motu review. In that view of the matter, the learned Trial Judge was in error in exercising his suo motu power of review. ( 5 ) BESIDES, the grievance of the present appellants is also to the effect that no notice was served to them before the order passed by the learned Trial Judge on 15th September 1976 below Exh. 66 in Insolvency Petition No. 17 of 1971 was reviewed. Rule 4 of Order 47 of the Code ordains the Court to give a prior notice to the opposite party before reviewing its judgment or order. If it is not done, the review order will have to be branded as illegal and invalid. It cannot be gainsaid that any order passed against a party without affording him an opportunity of hearing will be in violation of the audi alteram partem rule, a basic rule of natural justice. It is a settled principle of law that any order passed in violation of principles of natural justice would be a nullity. The impugned order passed by the learned Trial Judge cannot therefore be sustained in law also on this ground alone. ( 6 ) IN this connection, a reference deserves to be made to the ruling of the calcutta High Court in the case of calcutta Properties Ltd. and etc. v. S. N. Chakrabortty reported in AIR 1988 calcutta 131. In that case one mortgage suit was instituted in Court No. 3 of the subordinate Judge at Alipore against the original mortgager, as defendant No. 1 and the subsequent purchaser of the mortgage security as defendant No. 2 it was found that defendant No. 1 in that suit, that is, the original mortgager, was no longer alive on the date of institution of the suit. Thereupon, by his order passed on 27th January 1971, the learned Trial judge dismissed the suit as it was not maintainable and it could not proceed against defendant No. 2 who was the subsequent purchaser of the mortgaged security. Later on it appears to have dawned upon the learned Trial Judge that his order of 21st January 1971 was erroneous. Thereupon, by his order passed on 27th January 1971, he set aside his earlier order of 21st January 1971 dismissing the suit as not maintainable and restored the suit back to file. The subsequent order of 27th January 1971 was passed by the learned Trial Judge suo motu and without any notice to or any application from any of the parties. Being aggrieved thereby, original defendant No. 2 applied for review of the order of 27th January 1971 under order 47 Rule 1 of the Code. The successor Judge accepted the review application by his order passed on 29th september 1972 and set aside the order passed on 27th January 1971 and restored the first order passed on 21st January 1971. That aggrieved the original plaintiff and he therefore moved the High Court of Calcutta by means of his first appeal and challenged the order passed by the learned Trial Judge on 29th September 1972. In that context, the Division Bench of the Calcutta High Court has held:"and as the provisions of Section 114 and Order 47 Rule 1 of the Code would show, the power of review, if otherwise exercisable, could not be exercised only on the application of a party and not by the Court on its own motion and it is admitted that there was no such application by any party in this case. "it has also been held:"therefore, even if the provisions of section 151 of the Code are construed to have preserved inherent power of review apart from and dehors the provisions of Section 114 and Order 47 rule 1 of the Code they must be so construed, as to require notice to the parties or the party affected before such power can be exercised, in accordance with the principle of natural justice which is a fundamental principle of our judicial procedure. " ( 7 ) THE aforesaid Division Bench ruling of the Calcutta High Court in the case of S. N. Chakrabortty (supra) is all fours applicable in the present case. " ( 7 ) THE aforesaid Division Bench ruling of the Calcutta High Court in the case of S. N. Chakrabortty (supra) is all fours applicable in the present case. I am in respectful agreement therewith. It buttresses the view I have taken in this case. ( 8 ) SHRI Bhatt for the respondent has urged that the Court is invested with inherent powers to correct its own errors of mistakes. The impugned order nowhere speaks of correction of its error or mistake by the Court by its review order. Besides, the aforesaid Division Bench ruling of the Calcutta High Court in the case of s. N. Chakrabortty (supra) provides a complete answer to the aforesaid submission urged before me by Shri Bhatt for the respondent. ( 9 ) IN the result, this appeal is accepted. The impugned order passed by the learned judge of Court No. 10 of the City Civil court at Ahmedabad on 23rd January 1977 below Exh. 66 in Insolvency Petition no. 17 of 1971 is quashed and set aside. The matter is remitted to the Trial Court for implementing the earlier order passed by the learned Trial Judge on 15th september 1976 if not done so far There shall be no order as to costs. Order accordingly. .