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2009 DIGILAW 418 (CAL)

Tarapada Dey v. Amitava Dey

2009-06-15

BASWANATH SOMADDER

body2009
JUDGMENT Re. CAN 3116 of 2009. 1. Affidavit of service filed on behalf of the applicants be kept on record. 2. Heard the learned advocates for the parties. 3. This is an application for condonation of delay in filing a review application. After considering the submissions made by the learned advocates, I am of the view that sufficient cause has been shown to explain the delay and as such the delay in filing the review application, being RVW 54 of 2009 is condoned and the application stands allowed accordingly. RVW 54 of 2009. 4. This is an application for review of the judgment and order dated 19 January, 2009, passed by this Court in an application under Article 227 of the Constitution of India, being C.O.3641 of 2007. 5. The applicants herein were the petitioners in the aforesaid revisional application. In the said revisional application, an order passed by the learned executing court dismissing the judgment-debtors’ application filed before it under Section 47 of the Code of Civil Procedure, 1908, was sought to be challenged. 6. By the judgment and order dated 19th January, 2009, this Court, upon perusing the pleadings and after taking into consideration the respective contentions of the parties, was pleased to dismiss the said revisional application with the following, inter alia, observations:- “ ....... As observed hereinbefore, in the facts of the instant case, the decree passed by the learned trial court was affirmed by the judgment and order of the Division Bench of this Hon’ble Court on 6th October, 2005, which upheld its validity. Consequently, the appellate decree passed on the very same day, merely recorded dismissal of the appeal by the Division Bench of this Hon’ble Court. In the judgment and order dated 6th October, 2005, the Division Bench of this Hon’ble Court, inter alia, went into all the questions sought to be raised by the judgment-debtors before the learned executing court in the application under section 47 of the Code of Civil Procedure, 1908. In the judgment and order dated 6th October, 2005, the Division Bench of this Hon’ble Court, inter alia, went into all the questions sought to be raised by the judgment-debtors before the learned executing court in the application under section 47 of the Code of Civil Procedure, 1908. The impugned order, which takes due note of the observations made by the Division Bench of this Hon’ble Court in the judgment and order dated 6th October, 2005, cannot be said to be suffering from even an iota of infirmity of reasoning or any error of law or can be said to be an order passed without jurisdiction which could warrant interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The application is, therefore, liable to be dismissed and the same is hereby dismissed.” 7. It has been urged by the learned advocate appearing on behalf of the applicants in the instant review application that gross errors have crept into the judgment and order dated 19th January, 2009, passed by this Court, due to oversight and the same should be corrected by this Court without driving the parties to prefer an appeal by way of Special Leave before the Supreme Court. It has also been urged before this Court that there are ample grounds for interference in the instant application since the judgment and order passed by this Court in the revisional application amounted to manifest injustice and error, which is apparent on the face of the record. 8. Learned advocate for the applicants submits that the decree passed by the learned trial court, based on which all subsequent proceedings were initiated, was a nullity and when a decree is a nullity, the same could be assailed in execution and even in collateral proceedings. To substantiate his argument, the learned advocate relies on a judgment of the Supreme Court in the case of Kiran Singh and others v. Chaman Paswan and others reported in AIR 1954 SC 340 . He further submits that this Court ought to review the judgment and order dated 19th January, 2009, since it failed to consider the point of fraud. He submits that the plaintiff had practised fraud on the registering authority as well as the court by claiming ownership of the suit shop room of which Bijoy Krishna Dey was a tenant. He further submits that this Court ought to review the judgment and order dated 19th January, 2009, since it failed to consider the point of fraud. He submits that the plaintiff had practised fraud on the registering authority as well as the court by claiming ownership of the suit shop room of which Bijoy Krishna Dey was a tenant. He submits that since fraud vitiates all the transactions, no person can take advantage of obtaining a judgment passed on gross suppression of facts. Learned advocate for the applicants also submits that when a judgment and decree is obtained by fraud, the same is required to be treated as nullity or non est in the eyes of law and can be questioned even in collateral proceedings. He relies on the judgment of the Supreme Court in the case of S.P. Chengal Varaya Naidu (Dead) by Lrs. v. Jagannath (Dead) By Lrs. & Ors. reported in (1994) 1 SCC 1 , to substantiate this point. He also relies on another judgment of the Supreme Court in the case of Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others reported in AIR 1954 SC 526 and submits that the words, “any other sufficient reason” appearing under Rule 1 of Order XLVII of the Code of Civil Procedure, 1908 must mean a reason sufficient on grounds, at least analogous to those specified in the Rule. Referring on the same judgment, he submits that failure to deal with maintainability of the suit would amount to an error apparent on the face of the record. On the definition and/or meaning of the word ‘fraud’, the learned advocate for the applicants relies on the judgment in the case of S.P. Chengal Varaya Naidu (Dead) by Lrs. v. Jagannath (Dead) By Lrs. & Ors. (supra). Relying on the said judgment, he also submits that the principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. He submits that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. A person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. He submits that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. A person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. He also relies on Green View Tea & Industries vs. Collector, Golaghat, Assam, reported in (2004) 4 SCC 122 and submits that failure to take into account material evidence on record constituted error apparent on the face of the record and therefore, in the facts and circumstances of the instant case this Court should allow the instant application for review and restrain the opposite party from proceeding with the execution case. 9. On the other hand, learned advocate appearing on behalf of the opposite party submits that no grounds have been made out in the instant review application for bringing it within the fold of Order XLVII Rule 1 of the Code of Civil Procedure, 1908. He further submits that it is well settled that the court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. He submits that a decree, even if it be erroneous, is still binding until it is set aside by an appropriate proceeding in appeal or revision. In this regard he relies on the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others reported in AIR 1970 SC 1475 . He further submits that in the facts and circumstances of the instant case the decree passed by the learned trial court was challenged before the court of appeal which affirmed the decree and even in the revisional application the validity of the decree was looked into. He further submits that there has been no error apparent on the face of record in so far as the judgment and order dated 19th January, 2009, is concerned. He further submits that there has been no error apparent on the face of record in so far as the judgment and order dated 19th January, 2009, is concerned. He also relies on a judgment of the Himachal Pradesh High Court in the case of State Bank of India, Bilaspur vs. Indira Building Works and others reported in 2008 (1) Bank CLR 406 (HP) and submits that there is no dispute to the proposition of law that fraud vitiates all transactions, but if there is no withholding of facts or non-production of documents before the learned trial court, the ground of fraud, as sought to be urged now, does not have any legs to stand on. 10. After considering the submissions made by the learned advocates for the parties and upon perusing the instant review application as well as the records, it appears that the only issue that is required to be addressed is whether the judgment and order dated 19th January, 2009, can be reviewed on the grounds sought to be urged by the applicants in the instant application. 11. Before going into that aspect of the matter, it requires to be observed that it is well known that the scope of review of an order is extremely limited. The court, sitting in review jurisdiction, does not have the competence to rehear a matter de novo, since that would amount to committing a gross jurisdictional error, nor can a court allow a review application to become an appeal in disguise. In this regard one may take notice of the observations of the Supreme Court in the case of Parsion Devi –vs- Sumitri Devi reported in (1997) 8 SCC 715 . In paragraphs 9 & 10 of the said judgment it has been observed, inter alia, as follows:- “9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”. “10. Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. The observations of Sharma, J. that “accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided” and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25-4-1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, “which had to be detected by a long-drawn process of reasons” and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment-debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a “review” of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6-3-1997.” 12. The procedural law for review is provided under Rule XLVII of the Code of Civil Procedure, 1908. In this view of the matter, we are of the opinion that the impugned order Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6-3-1997.” 12. The procedural law for review is provided under Rule XLVII of the Code of Civil Procedure, 1908. Rule 1 under Order XLVII, inter alia, provides that an application for review of judgment would lie if there has been a discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the applicant 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. 13. The applicants in the present review application have stressed primarily on the ground of fraud not having been considered by this Court while passing the judgment and order dated 19th January, 2009. The said judgment and order was passed by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. It may not be out of place, at this stage, to set out the grounds based on which the revisional application, being C.O. 3641 of 2007, was filed. There were six grounds in the said application, which are set out here-in-below:- “i) For That the Learned Judge of the Court below exercised its jurisdiction illegally or with material irregularity in not considering the material facts of the petition. ii) For That the Learned Judge of the Court below has failed to exercise of its jurisdiction by not holding that tenancy right cannot be transferable without written consent of the Landlord, so deed of gift executed by the Bijoy Krishna Dey, since deceased in favour of one of his grandson in respect of the tenancy is invalid and executing Court have no authority to execute Decree in respect of the tenant’s shop room. iii) For That the Learned Judge of the Court below acted illegally with material irregularity in the exercise of its jurisdiction to reject the application under Section 47 of the Code of Civil Procedure by not holding that after the death of the Original Tenant Bijoy Krishna Dey the heirs and legal representative inherited the tenancy right and Decree Holder Amitiva Dey did not acquire any right title interest in the disputed shop room on the strength of the Registered Deed of Gift dated 23.10.1992 particularly when the Hon’ble High Court dismissed the application with the observation made in the judgment in respect of the tenancy of the shop room in question. iv) For That the Learned Judge has failed to understand the true meaning and observation made in the judgment in FA No. 270 of 1999 in respect of the Tenancy room. v) For That the Learned Judge of the Court below exercised its jurisdiction with material irregularity by not holding that the decree is not executable so far the tenancy room is concerned. More over landlord is not a party in Title Suit No. 2723 of 1994. vi) For that the impugned order is otherwise bad in law in view and in excess of or beyond jurisdiction and is liable to be set aside.” 14. None of the judgments cited by the learned advocate for the applicants herein are applicable in the facts and circumstances of the instant case since a bare perusal of the above grounds goes to show that not a single ground of fraud was pleaded in the revisional application, being C.O.3641 of 2007. Simply because it has been urged on behalf of the applicants that gross errors have crept into the judgment and order dated 19th January, 2009, due to oversight and the same should be corrected by this Court without driving the parties to prefer an appeal by way of Special Leave before the Supreme Court, in my opinion, is not a good or valid reason for entertaining the instant review application by bringing it within the fold or ambit of “any other sufficient reason” as described under sub-rule 1 of Rule 1 of Order XLVII of the Code of Civil Procedure, 1908. More importantly, it appears to this Court that the instant review application has been filed by the applicants only to stall the execution proceeding which is pending before the learned executing court since 1998. In the judgment and order dated 19th January, 2009, this Court had the occasion to discuss at length all the issues raised in the revisional application as well the scope and power of the executing court under section 47 of the Code of Civil Procedure, 1908. This Court also considered the Division Bench judgment of this Court dated 6th October, 2005, which upheld the validity of the decree passed by the learned trial court. This Court also observed in the judgment and order dated 19th January, 2009 that the Division Bench of this Court, inter alia, went into all the questions sought to be raised by the judgment-debtors (applicants herein) before the learned executing court in the application under section 47 of the Code of Civil Procedure, 1908. It was in that backdrop this Court observed, while dismissing the application under Article 227 of the Constitution of India, that the impugned order of the executing court, which took due note of the observations made by the Division Bench of this Court, cannot be said to be suffering from even an iota of infirmity of reasoning or any error of law or could be said to be an order passed without jurisdiction which could warrant interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. 15. In such circumstances, I have no hesitation to hold that the instant application for review is an utterly misconceived one and is a classic example of abuse of process of court and was brought out ostensibly for review but primarily to stall the execution proceeding pending since 1998. The instant application for review is thus liable to be dismissed with exemplary cost and is hereby dismissed with costs assessed at 500 GMs. 16. Urgent xerox certified copy of this order, if applied for, be given to the parties.