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Andhra High Court · body

2013 DIGILAW 48 (AP)

Kapadam Sangalappa v. Kamatam Sangalappa

2013-01-28

K.G.SHANKAR

body2013
JUDGMENT : 1. This review petition is laid by the respondents 1 to 6 in C.R.P.No.5224 of 2005 assailing the order dated 06-01-2012. The petitioners in the revision are the respondents 1 to 3 herein. The 7th respondent in the revision petition is arrayed as respondent No.4 in the review petition. The 4th respondent herein is Gram Panchayat, Sanjeevapuram Village, which is more or less a disinterested person in the dispute. I may also point out that although it is shown that the respondents 1 to 6 in the revision laid the present review, it was indicated that the 4th respondent in the revision died after the disposal of the revision petition. However, he is also shown as petitioner No.4 in this review petition. 2. Lord Sangalappa is a Deity to the people belonging to Koraba Community. The petitioners as well as the respondents 1 to 3 are the members of Koraba Community. However, they belong to two different villages viz., Gangulakunta and Yerrayapalli. All the petitioners are the members of Kapadam family. They belong to Gangulakunta Village. The respondents 1 to 3 are the members of Kamatam family and they are residents of Yerrayapalli Village. Long standing disputes exist between the members of Kamatam family of Yerrayapalli and Kapadam family of Gangulakunta. The dispute culminated into C.R.P.No.5224 of 2005. Through orders dated 06-01-2012, I allowed the revision and set aside the orders in E.P.No.59 of 2000 in O.S.No.15 of 1933 on the file of the Principal Senior Civil Judge, Anantapur. Considering that there was error apparent on the face of record, members of Kapadam family of Gangulakunta preferred the present review petition. 3. Sri T.Bali Reddy, learned Senior Counsel appearing for Kapadam family of Gangulakunta, exhaustively dealt with the various parts of the order and contended that there is every need for review. On the other hand, Sri K.G.Krishna Murthy, learned Additional Advocate General appearing for Kamatam family of Yerrayapalli, contended that the petition is beyond the scope of review and that the application is not maintainable. More or less, the only contention of the learned Additional Advocate General is that the present review is not maintainable under Section 114 read with Order XLVII, Rule 1 C.P.C. He dealt with exhaustive case law which needs to be examined before considering the arguments of Sri T.Bali Reddy, learned Senior Counsel appearing for Kapadam family. More or less, the only contention of the learned Additional Advocate General is that the present review is not maintainable under Section 114 read with Order XLVII, Rule 1 C.P.C. He dealt with exhaustive case law which needs to be examined before considering the arguments of Sri T.Bali Reddy, learned Senior Counsel appearing for Kapadam family. It is to be examined whether the contentions raised by the learned Senior Counsel for the review of the impugned order are sustainable or not, in the light of the case law. 4. However, the facts leading to the present lis deserve to be narrated, though briefly. The members of Kamatam family of Yerrayapalli filed O.S.No.486 of 1927 on the file of the District Munsif Court, Anantapur. It was a suit for custody of pooja articles of no material value but of tremendous religious and sentimental significance. It included articles like bronze horses and idols of Lord Sangalappa Swamy. The Kapadam family of Gangulakunta resisted O.S.No.486 of 1927. The suit consequently was dismissed. Kamatam family preferred an appeal from the judgment and decree in O.S.No.486 of 1927 being A.S.No.114 of 1928 on the file of the District Court, Anantapur. The appeal was also dismissed. 5. There was an observation in A.S.No.114 of 1928 that the plaintiffs therein, i.e. the members of Kamatam family might file a suit in representative capacity under Section 92 C.P.C as a scheme suit. Taking cue from the observations of the District Judge, Anantapur, members of Kamatam family filed O.S.No.1 of 1931 before the District Court, Anantapur. It was subsequently transferred to the Court of the Sub Judge, Anantapur and was renumbered as O.S.No.15 of 1933. The parties entered into a compromise during the pendency of O.S.No.15 of 1933. The disputes between Kamatam family and Kapadam sect more or less subsided after the compromise. However, members of Kapadam sect filed E.P.No.59 of 2000 as decree holders arraying the members of Kamatam family as judgment debtors. 6. Kamatam family filed counter in E.P.No.59 of 2000. They later attempted to amend the counter by filing E.A.No.686 of 2001. However, the execution court dismissed E.A.No.686 of 2001. The High Court however allowed Kamatam people to amend the counter through orders in C.R.P.No.2777 of 2002. 6. Kamatam family filed counter in E.P.No.59 of 2000. They later attempted to amend the counter by filing E.A.No.686 of 2001. However, the execution court dismissed E.A.No.686 of 2001. The High Court however allowed Kamatam people to amend the counter through orders in C.R.P.No.2777 of 2002. E.A.No.686 of 2001 was remitted to the execution court through orders in C.R.P.No.2777 of 2002, inter alia, directing the execution court to frame a point regarding the maintainability of the execution petition. The execution court held that E.P.No.59 of 2000 was maintainable through orders dated 14-10-2003. Kamatam sect preferred yet another revision in C.R.P.No.6055 of 2003 questioning the orders dated 14-10-2003. However, the revision was dismissed. 7. The execution court took up E.P.No.59 of 2000 for enquiry as C.R.P.No.6055 of 2003 was dismissed by this Court. E.P.No.59 of 2000 was ultimately allowed by the execution court. The Kamatam family of Yerrayapalli was directed to return to the Kapadam family the scheduled articles covered by the execution petition within one month from the date of the order. The execution court went further and ordered that in the event the Kamatam family of Yerrayapalli did not honour the decree as directed by the execution court, a warrant under Order XXI, Rule 31 C.P.C should be issued for the seizure of the execution petition schedule articles. Assailing the same, C.R.P.No.5224 of 2005 was filed. 8. Exhaustive arguments were advanced by both sides. I concluded that the revision indeed was maintainable under Section 115 C.P.C. and that the Kapadam family of Gangulakunta has locus standi to lay the execution petition but held that the Kamatam family of Yerrayapalli constituting the judgment-debtors did not violate the terms of the consent decree. Consequently, the revision was allowed and E.P.No.59 of 2000 was dismissed through the orders under review. 9. Now, the Kapadam family of Gangulakunta came up with the present review petition contending that the impugned order is prima facie erroneous and is liable to be rectified. As already pointed out, Sri T.Bali Reddy, learned Senior Counsel for the review petitioners (who were described as the decree-holders in the revision), has argued exhaustively. 9. Now, the Kapadam family of Gangulakunta came up with the present review petition contending that the impugned order is prima facie erroneous and is liable to be rectified. As already pointed out, Sri T.Bali Reddy, learned Senior Counsel for the review petitioners (who were described as the decree-holders in the revision), has argued exhaustively. Again, as already stated, the learned Additional Advocate General, representing the members of the Kamatam family of Yerrayapalli (who were described as the judgment-debtors in the revision), contended that the very review is not maintainable, so much so, the question of passing orders on the review petition does not arise. Unless the preliminary objection raised by the learned Additional Advocate General is overcome, the merits of the case cannot be considered. I therefore propose to examine the scope of a review application at the outset. 10. Section 114 C.P.C adumbrates: “114. Review:-- Subject as aforesaid, any person considering himself aggrieved— (a) by decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decreeor order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 11. Order XLVII C.P.C deals more elaborately with review. Order XLVII, Rule 1 C.P.C may be quoted at this stage conveniently. Order XLVII, Rule 1 C.P.C reads: “1. Order XLVII C.P.C deals more elaborately with review. Order XLVII, Rule 1 C.P.C may be quoted at this stage conveniently. Order XLVII, Rule 1 C.P.C reads: “1. Application for review of judgment:-- (1) 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 decreeor 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 of 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. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondents, he can present to the Appellate Court the case on which he applies for the review. Explanation:-- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” A plain reading of Order XLVII, Rule 1 C.P.C implies that discovery of new evidence, error apparent on the face of the record or a sufficient analogous reason is necessary to review an order passed by the Court. It may also be pointed out that the review is not similar to an appeal. The scope of review is much narrower vis-à-vis the scope of an appeal. 12. In LILY THOMAS v. UNION OF INDIA (2000) 6 SCC 224 ), the Supreme Court referred to Northern India Caterers (India) Ltd. v. Lt. It may also be pointed out that the review is not similar to an appeal. The scope of review is much narrower vis-à-vis the scope of an appeal. 12. In LILY THOMAS v. UNION OF INDIA (2000) 6 SCC 224 ), the Supreme Court referred to Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [ (1980) 2 SCC 167 ], where the Court considered the power of the Supreme Court under Order XLVII, Rule 1 C.P.C read with Article 137 of the Constitution of India. Inter alia, the Supreme Court held that “a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except ‘where a glaring omission or a patent mistake or like grave error has crept in earlier by judicial fallibility’”. 13. The Supreme Court observed in INDERCHAND JAIN v. MOTILAL (2009) 14 SCC 663 ) that review is not an appeal in disguise and that a review court cannot sit in appeal over its own order rehearing the matter. It was observed that the very review is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. 14. In S.BAGIRATHI AMMAL v. PALANI ROMAN CATHOLIC MISSION (2009) 10 SCC 464 ), the Supreme Court considered in detail as to what is an error apparent on the face of the record as contemplated by Order XLVII, Rule 1 C.P.C. The Supreme Court observed thus: “12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us analyse the impugned judgment of the High Court and find out whether it satisfies any of the tests formulated above.” The Supreme Court ultimately concluded that if the judgment/order under review was vitiated by an apparent error or it was palpably wrong and also if the error was self-evident, review of such an order was permissible. 15. Relying upon various decisions of the Supreme Court, a Division Bench of this Court held in T.Laxma Reddy v. Government of Andhra Pradesh ( 2010 (1) ALD 360 (DB)) thus: “11. The principles, which can be culled out from the above noted judgments are: 1. On the discovery of new and important matter or evidence which, after the exercise of due diligence is not within the knowledge or could not be produced by the petitioner at the time when the order was made. 2. It can be exercised on account of some mistake or error apparent on the face of record. 3. To correct the patent error of law or fact which stares in the fact. 4. The expression “any other sufficient reason” appearing in Order XLVII Rule 1 CPC has to be interpreted in the light of other specified grounds. 5. An erroneous order/judgment cannot be corrected in the guise of exercise of power of review. 6. There is a clear distinction between an erroneous decision and an error apparent on the face of record. While the former can be corrected by the higher forum, the latter only can be corrected under Order XLVII Rule 1 CPC. 7. While exercising the power of review, the Court cannot sit in appeal over its judgment. 8. 6. There is a clear distinction between an erroneous decision and an error apparent on the face of record. While the former can be corrected by the higher forum, the latter only can be corrected under Order XLVII Rule 1 CPC. 7. While exercising the power of review, the Court cannot sit in appeal over its judgment. 8. The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts of the legal position.” 16. In Haridas Das v. Smt. Usha Rani Banik ( AIR 2006 SC 1634 ), the Supreme Court clarified that Order XLVII, Rule 1 C.P.C does not postulate a rehearing of the dispute on the ground that a party had not highlighted all the aspects of the case or could have argued them more forcefully and could have cited binding precedents to the Court thereby enjoying a favourable verdict. 17. In Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury ( AIR 1995 SC 455 ), the Calcutta High Court considered it appropriate to review its earlier decision in a case. The dispute primarily related to the question whether the plaintiff and the defendant had jointly purchased the disputed plot. The Calcutta High Court issued a finding on the same as an appellate court. The Supreme Court held that such an order by the Calcutta High Court was not reviewable even if the order was erroneous. In that case, where the Calcutta High Court reapprised the entire evidence and reversed the finding, the Supreme Court set aside the very review order holding that the appellate Court went beyond the scope of review. 18. V.R.Krishna Iyer, J. observed in Col. Avtar Singh Sekhon v. Union of India ( AIR 1980 SC 2041 ) in the following lines: “12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. … … …” 19. In Sow Chandra Kante v. Sheikh Habib ( AIR 1975 SC 1500 ), the Supreme Court observed: “1. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. … … …” 19. In Sow Chandra Kante v. Sheikh Habib ( AIR 1975 SC 1500 ), the Supreme Court observed: “1. … … … A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. … … …” 20. On the strength of these decisions, the learned Additional Advocate General contended that the very review is not maintainable and is liable to be rejected in limine. 21. On the other hand, the learned Senior Counsel representing the review petitioners placed reliance upon PARSION DEVI v. SUMITRI DEVI ( (1997) 8 SCC 715 ). In that case, the Supreme Court observed: “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”. 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. 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. … … …” 22. It is the contention of the learned Senior Counsel that the order under review contains error apparent on the face of the record and that it can be rectified only by the Court which passed the order. 23. In the light of these decisions, I may examine whether there is any error apparent on the face of the record so as to warrant review of the orders. 24. It may be recapitulated that the suit was laid by the Kamatam family of Yerrayapalli and that on 01-11-1933, a compromise decree was passed in accordance with the terms of compromise. Clauses 5 to 10 of the terms of compromise are material terms of compromise. The learned Senior Counsel for the review petitioners, inter alia, contended that the terms of compromise are not alterable and that there is no question of either party to the suit agreeably deviating from the terms of compromise. According to the terms of compromise, Kamatam sect shall perform rituals to the Goddess from 01st October of each year till 31st March of the next year by taking the idols together with the paraphernalia from Kamatam sect. For the remaining period of six months from the 01st of April till 30th September of each year, it is the turn of Kamadam sect to lead the worship of the Goddess. 25. While the decree was passed on 01-11-1933, Kamadam sect filed E.P.No.59 of 2000 alleging that the Kamatam sect did not honour the terms of compromise and failed to handover the idol and the paraphernalia to Kamadam people. People belonging to Kamatam sect contended that the Execution Petition had become infructuous. The execution court negatived this claim. Kamatam sect also took a stand that the Execution Petition was barred by limitation. The execution court held that the Execution Petition was within time. Consequently, the Execution Petition was allowed. Thereupon, C.R.P.No.5224 of 2005 was filed, which was disposed of through the impugned order dated 06-01-2012. The execution court negatived this claim. Kamatam sect also took a stand that the Execution Petition was barred by limitation. The execution court held that the Execution Petition was within time. Consequently, the Execution Petition was allowed. Thereupon, C.R.P.No.5224 of 2005 was filed, which was disposed of through the impugned order dated 06-01-2012. In the revision, questions that whether Kamatam sect has locus standi to file Execution Petition and whether the Execution Petition was barred by limitation or not, were held by me in favour of the review petitioners holding that the Kamadam people of Gangulakunta have locus to lay the Execution Petition and that the Execution Petition was within time. I also held that the revision was maintainable. 26. The learned Senior Counsel for the review petitioners contended that Kamatam people raised contradictory pleas and that the contentions raised by them are in violation of the terms of the compromise decree. It may be recalled that Kamatam people referred to as the judgment-debtors contended that although the judgment-debtors had been performing pooja, it was not to the original idols but to subsequently installed idols and that the idols which were the subject matter of the dispute were given a go-by by both sides long ago. I may point out that I had already held that this contention of the Kamatam sect had no proof. The learned Senior Counsel for the review petitioners contended that the Kamatam sect must be considered to have admitted that they had received the idols and violated the terms of the compromise by failing to handover the same to the decree-holders/Kamadam sect. I am afraid that the contention cannot be accepted where I had already concluded that there was no violation of the terms and conditions of the compromise decree. This issue is a question of fact. If the review petitioners are aggrieved by my observations, perhaps the only course open for the review petitioners is to prefer an appeal but not seeking review to reappreciate a question of fact on which I had already issued a finding. The claim of the review petitioners cannot fulfil any of the conditions laid down in T.Laxma Reddy’s case (4 supra). 27. The claim of the review petitioners cannot fulfil any of the conditions laid down in T.Laxma Reddy’s case (4 supra). 27. The learned Senior Counsel for the review petitioners contended that when I held that the compromise decree was liable to be implemented continuously for all future occasions, it is tantamount to holding that the Kamatam sect violated the breach of the terms and conditions of the compromise decree. I respectfully disagree with the contention of the learned Senior Counsel for the review petitioners. I held that the Execution Petition was within time as the decree is liable to be performed at all future times. At the same time, I concluded that there was no violation by the judgment-debtors in the execution of the compromise decree, so much so, the Execution Petition was liable to be dismissed on merits. It is contended by the learned Senior Counsel for the decree-holders that it is not open for the judgment-debtors to defy the consent decree after following the same for 66 years. I however concluded that the judgment-debtors have not violated the consent decree and that the question of executing the same did not arise. 28. Inter alia, the learned Senior Counsel contended that the parties to the decree cannot traverse beyond the consent decree. Indeed, parties cannot go beyond the decree. However, in the circumstances of the case where the consent decree was passed in 1933 and where none of the parties to the decree are parties to the Execution Petition, there is no alternative but to consider the present circumstances. The present circumstances, as already pointed out in the impugned order show that the judgment-debtors had not violated the terms and conditions of the decree. 29. The learned Senior Counsel, inter alia, contended that the execution court held that the judgment-debtors were in possession of the property and that this fact was not brought to my notice and that it is an error apparent on record. I am afraid that no new material is placed before me to review the impugned order. The case of Kamadam sect as the decree-holders is that the Kamatam sect as the judgment-debtors has been in possession of the schedule properties. I had already held that the decree-holders failed to show that the scheduled articles have been with the judgment-debtors. I am afraid that no new material is placed before me to review the impugned order. The case of Kamadam sect as the decree-holders is that the Kamatam sect as the judgment-debtors has been in possession of the schedule properties. I had already held that the decree-holders failed to show that the scheduled articles have been with the judgment-debtors. I do not consider that it is open for me to reconsider the same in a review petition. 30. For these reasons, I am constrained to hold that there are no substantial grounds to review the impugned order. I therefore see no merits in this review petition. This review petition accordingly is dismissed. However, there shall be no order as to costs.