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Judgment
K.N. Phaneendra, J—I.A. 1/15 is filed under Section 5 of the Limitation Act for condonation of delay in filing the petition.
Accepting the grounds urged in the affidavit, the delay of 14 days in filing this review petition is hereby condoned. Consequently, I.A. 1/15 is allowed.
I.A.3/15 is filed seeking permission to prosecute the petition by petitioner No. 1(a).
Accepting the grounds urged in the affidavit, as the cause of action survives to the legal representative of deceased first petitioner, I.A.3/15 is hereby allowed and petitioner No. 1(a) is permitted to prosecute this review petition.
I.A.2/15 filed under Section 151 of the CPC seeking stay of the FDP 1/88 does not survive for consideration and the same is dismissed in view of the petition being disposed off on merits.
The petitioners have approached this Court seeking review of the order dated 07/11/2013 passed by this Court in Writ Petition Nos. 66294-66298/2010.
The petitioners have approached this Court with several grounds to review the order stating that this Court while passing the orders has not considered the grounds urged by the petitioners in its proper perspective and has committed an error in holding that the suit property is capable of division. The appointment of Commissioner by the FDP Court was challenged on the ground that the Court cannot give directions to the Commissioner to execute the decree which is beyond the scope of the final decree proceedings. That particular aspect has not been considered by this Court while disposing of the above said writ petitions. Therefore, it amounts to an error on the face of the record. Therefore, review petition deserves to be allowed.
Before adverting to the order passed by this Court, it is just and necessary to peruse under what circumstances the Court can review its own orders.
Order XLVII Rule 1 of the Code of Civil Procedure, 1908, reads as follows:
"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 decree or order from which no appeal is allowed, or
(c) by a decision on 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."
On meticulous and meaningful understanding of this particular provision, it clearly discloses that the mistake or error must be apparent on the face of the record or any other sufficient reason if the person desires to obtain a review of the decree passed or order made, he may apply for the review of the judgment of the Court. Therefore, it presupposes that there must be a mistake or error apparent on the face of the record. Therefore, this Court has to find out whether there is an error apparent on the face of the record in order to consider the review petition.
In this back ground, the order passed by this Court on 07/11/2013 is perused. The order shows that the petitioner has urged the same grounds which are urged in the writ petitions. This Court has observed that the final decree Court has appointed ADLR, City Survey Office, Dharwad as Court Commissioner for effecting partition as per the preliminary decree in O.S. No. 5/1963. According to the petitioners, the decree is not capable of being executed. The decree is for partition and separate possession of shares in the suit property measuring 146 sq. yards. This Court was of the opinion that the Court below having considered all the above said facts and after having considered the entire material on record has rightly allowed the application appointing the Commissioner holding that the suit property was capable of division.
What the learned counsel like to canvass before this Court is that the observation that the suit property is capable of division as mentioned by the trial Court is not proper and correct. It is the Commissioner who has to make such an observation and submit whether it is capable of division or not. Further, the said two points i.e. the decree itself was not capable of being executed and the suit property is not capable of division were raised before this Court and this Court after perusal of the trial Court''s order and also after hearing the learned counsel was of the opinion that the trial Court is right in passing the said orders. Therefore, the Court has not interfered with the orders of the trial Court. Therefore, in my opinion, looking to the above factual aspects, the grounds urged in the writ petition and also the orders passed by the trial Court have been considered by this court and by assigning reasons the writ petitions were dismissed. Therefore, if at all the petitioners are aggrieved by the said order, the proper way is to prefer an appropriate appeal against the said order and not by way of petition for reviewing the order, as there is no error apparent on the face of the record in the order passed by this Court. Therefore, in my opinion, there is absolutely no reasons to entertain this review petition.
Hence, I dispense with issuance of notice to the respondents and consequently, dismiss the review petition.