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2012 DIGILAW 716 (KER)

P. T. Karunakaran Nambiar v. Syndicate Bank

2012-07-27

V.CHITAMBARESH

body2012
JUDGMENT V. Chitambaresh, J. 1. I am surprised as to how the Registry could number the review petition filed to review an order passed on another review petition filed to review a judgment in an original petition under Article 227 of the Constitution of India. The papers have been placed before me since the learned judge who pronounced the judgment in the original petition and later the order in the review petition has since demitted office. 2. The respondent bank filed a suit against the loanees for realisation of money by sale of the property mortgaged. The suit was decreed for realization of money alone without specifying the entitlement of interest on the amount so found due to the bank. There was also an omission in the decree to create a charge over the property to enable the bank to sell the same in execution. The bank thereupon filed an application for correction of the judgment and decree under Section 152 of the Code of Civil procedure, 1908 (CPC for short). 3. The court below allowed the application for correction by clamping a charge on the property by incorporation in the judgment and decree. The rate of interest was directed to be concluded on the basis of the statements to be filed by the bank and the loanees. The order allowing the application for correction was challenged in W.P.(C) No.6365 of 2007 on the file of this court. The original petition was dismissed affirming the order allowing the application for correction however reiterating that the rate of interest would be decided as stated by the court below. 4. The bank thereafter filed R.P.No.888 of 2010 in W.P. (C) No.6365 of 2007 seeking to review the judgment passed therein. The bank submitted that the rate of interest had been finalized by the court below even before the original petition was disposal of. The review petition filed to review the judgment in the original petition was disposed of recording the said submission of the bank. The loanees subsequently filed R.P.No.1002 of 2010 in R.P. No.888 of 2010 in W.P. (C) No.6365 of 2007. The loanees sought to review the order passed in the review petition filed to review the judgment in the original petition. The loanees asserted that the rate of interest had been arrived at without hearing them and was also excessive. 5. I heard Mr. The loanees sought to review the order passed in the review petition filed to review the judgment in the original petition. The loanees asserted that the rate of interest had been arrived at without hearing them and was also excessive. 5. I heard Mr. M. Sasindran, Advocate on behalf of the review petitioners and Mr.R.S.kalkura, Advocate on behalf of the bank. 6. I shall immediately refer to Section 141 of the Code of Civil procedure (the ‘CPC for short) which is extracted below: 141.) Miscellaneous proceedings:- The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. (Explanation – In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceedings under Article 226 of the Constitution.) The Explanation to Section 141 of the CPC indicates that the provisions of the CPC do not ipso facto apply to proceedings under Article 226 of the Constitution of India. But there is no such statutory guidance to proceedings under Article 227 of the Constitution of India. 7. The Supreme Court in Puran Singh and others v. State of Punjab and others (1996) 2 SCC 205 ::1996 ICO 425 had in this context observed as follows: “11.) ……… of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedures for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious, “(emphasis supplied). 8. I am therefore guided by the provisions and procedures prescribed under the CPC while considering this application for review put in by the loanees. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious, “(emphasis supplied). 8. I am therefore guided by the provisions and procedures prescribed under the CPC while considering this application for review put in by the loanees. The short question that arises is as to whether a second application for review is maintainable under the circumstances. Order XVII Rule 9 of the CPC is as follows: “9.) Bar of certain applications:- No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.” The present exercise to review an order passed on a review petition filed to review a judgment in an original petition under Article 227 of the Constitution of India is plainly barred. The principles underlying the provisions of Order XVII Rule 9 of the CPC can very well be imported in the instant case. The same court shall not be invited to deliberate on the same issue over and again and its verdict would never attain finality if this practice is encouraged. I however add that the loanees are at liberty to challenge the rate of interest awarded by the court below in other appropriate proceedings. The present review petition filed by the loanees is therefore rejected in limine.