N.S. Venkaiyan vs Radha Ammal

V. Periya Karuppiah, J.—Crp.Npd. No. 4002 of 2009: This revision petition has been filed against the order in O.E.A. No. 29 of 2008 in

E.P. No. 7 of 2006 in O.S. No. 24 of 1999 by the lower Court dated 13.07.2009.

CRP.Npd. No. 4003 of 2009: This revision petition has been filed against the order in allowing application filed in O.E.A. No. 25 of 2007 in

E.P. No. 7 of 2006 in O.S. No. 24 of 1999 dated 13.07.2009 passed by the lower Court.

Heard Mr. P. Wilson, the learned senior counsel appearing for the Petitioner for M/s. Wilson Associates and Mr. K.G. Senthil kumar, the

learned Counsel for the Respondent.

The learned senior counsel would submit in his argument that the lower Court has not considered the objections raised by the Petitioner before

him but it has misdirected by raising certain questions itself and erred grossly. He would further submit in his argument that the order passed by the

lower Court in the review application under Order 47 Rule 1 Code of CPC is to correct any mistake committed by the lower Court and not to

write a 2nd judgment reversing the earlier one in all respects. He would refer to the judgment of Hon''ble Apex Court reported in AIR 1951 SC

660 for that principle. He would further submit in his argument that the lower Court has exceeded the power given under Order 41 Rule 1 Code of

CPC to review the order, contrary to the earlier order passed on 13.02.2008 in O.E.A. No. 25 of 2007. He would further submit in his argument

that the order passed by the lower Court is in such a way cunning that it had referred Ex.P1 to P9, wherein there was no document filed by the

Respondent in O.E.A. No. 25 of 2007. He would further submit in his argument that the said order passed by the lower Court need not be

reviewed since there is an appeal provision available against the said order. He would also submit in his argument that the lower Court had wrongly

applied its mind for the time limit given as one month in an earlier exparte decree passed on 09.06.2000, which was subsequently set aside and

another decree was passed without any time limit. Therefore, the reasoning given by the lower Court is entirely wrong. He would again submit that

the execution Court had permitted the Petitioner to deposit the balance sale consideration of Rs. 30,000/-by granting 15 days time as per the order

of the said Court. He would further submit that the invoking of Section 28 of Specific Relief Act cannot be done when an order has already been

passed in the execution petition granting time to deposit the balance sale price. He would further submit that the Petitioner had given reasons of

pendency of the application to set aside the exparte decree along with condonation application and the same was dismissed and thereafter, the

Respondent preferred revision before this Court and the said revision was also dismissed and pendency of those proceedings would make the

Petitioner to deposit the said amount and the Execution Court also granted time for depositing the said amount after considering all those

circumstances. He would further submit in his argument that the deposit of the balance sale consideration of Rs. 30,000/-within the 15 days time as

prescribed by the lower Court would be sufficient to comply with the decree and therefore, the application filed under the provisions of Section 28

of the Act against the Petitioner would not be maintainable.

He would also draw the attention of the Court to a judgment of Hon''ble Apex Court reported in Kumar Dhirendra Mullick and Others Vs.

Tivoli Park Apartments (P) Ltd., , for the principle that the Court can grant time in favour of the decree holder to pay the amount or to perform

conditions mentioned in the decree for specific performance even after the passing of the decree. He would also cite a judgment of the High Court

of Andhra Pradesh reported in L. Venkata Krishna Reddy (Died) and Others Vs. M. Anjappa (Died) per L.Rs 10 to 16 and Others, to the

principle that when no time limit has been specified in the decree for payment of balance sale consideration, the delay in depositing balance sale

consideration will not be a ground for rescinding the decree. He would also bring it to the notice of this Court a judgment of the Hon''ble Apex

Court reported in Parsion Devi and Others Vs. Sumitri Devi and Others, for the principle that the jurisdiction of review should have been exercised

when mistake or error apparent on the face of the record could be corrected and not a decision reached by the Court. He would also cite a

judgment of Hon''ble Apex Court reported in The State of West Bengal and Others Vs. Kamal Sengupta and Another, for the principle that the

Court cannot exercise the power of review like sitting in an appeal over its own decision under Order 41 Rule 1 Code of Civil Procedure.

He would therefore, request the Court that the order passed in the review application as well as the revised order passed in O.E.A. No. 25 of

2007 on 13.07.2009 are liable to be interfered and set aside and thus the revision petitions may be allowed.

The learned Counsel for the Respondent would submit in his argument that the lower Court had correctly exercised its jurisdiction conferred

under Order 41 Rule 1 Code of CPC to review its own judgment when it has committed a mistake in not considering the Petitioner''s negligence in

depositing the balance sale consideration into Court within the time limit. He would further submit in his argument that the balance sale

consideration was not deposited into Court, even otherwise within a statutory period of 3 years. He would further submit in his argument that by

his own commission and omission of the decree holder, the decree passed in his favour, was rescinded u/s 28 of the specific relief act and the

lower Court considered the said mistake of not referring them in its earlier order. He would also submit in his argument that the document

produced as Exs.P1 to P9 by either side was not considered by the lower Court in its earlier. He would further submit in his argument the lower

Court had exercised its jurisdiction under review and on the principles of justice and good consciousness, it had interfered with its earlier order

passed by the lower Court and had corrected the said order and therefore, the orders passed by the lower Court in the review applications as well

as the consequential order passed in the application for rescinding the decree may not be disturbed.

I have given anxious thoughts to the arguments advanced on either side. The present revisions are against the orders passed by the lower Court,

in the review application and the consequent order passed in the main application. The undisputed facts are that the Petitioner as Plaintiff had filed a

suit for specific performance of an agreement of sale and for the execution of the sale deed in pursuance of the sale agreement entered into

between them and the suit was decreed exparte. In the said exparte decree, the trial Court did not grant any time limit for depositing the balance

sale consideration. The decree holder (Petitioner) has filed execution proceedings and in the meanwhile, the Respondent has filed an application to

set aside the exparte decree along with an application to condone the delay caused therein. The said application for condonation was dismissed by

the trial Court and the Respondent preferred revision before this Court and the revision was also not allowed and the order passed by the trial

Court was confirmed. Therefore, the said exparte decree became final and in pursuance of the decree, the execution petition was continued and

while the execution was in progress, the Respondent an application filed O.E.A. No. 25 of 2007 to rescind the decree.

The reason put forth by the Respondent in the said application was that the decree was not drafted properly and the exparte decree could not

be executed by the said Court since the balance sale consideration was not deposited immediately, even though the Petitioner was stated to have

been willing to deposit the balance sale consideration on the date of decree in his evidence. Therefore, the Respondent has asked for rescinding the

decree u/s 28 of the Specific Relief Act and also for the declaration that the judgment was null and void and in-executable and the Petitioner

cannot insist upon the Respondent for execution of the sale deed since he had deposited the balance sale consideration after the period was over

and the agreement entered into between the parties was also a forged one. Originally, the lower Court had passed an order of dismissal in the said

application on 13.02.2008. However, a review application has been filed in O.E.A. No. 29 of 2008, stating that the lower Court did not correctly

come to a conclusion since the balance sale consideration was not paid in time and the lower Court was misguided through various citations which

are not applicable to the said case and so on. It was also stated that the Exs.P1 to P9 were not considered by the lower Court at an earlier

occasion. If the said grounds are true, the lower Court must find the said defects corrected in the review and if it vitiates the decision already

reached by the Court, it can review its own order and modify the same. Actually, the balance of sale consideration was said to have paid in time as

extended by the execution Court. It is also an undisputed fact that there was no time limit fixed by the trial Court in its decree. But the lower Court

had struck to the time limit granted in the earlier exparte decree which was not in vogue and found that the balance of sale consideration was not

paid within one month time limit, given for depositing the said amount and thus, the Petitioner was found dis-obeyed the orders of the trial Court.

The said reason given by the lower Court to review its earlier order is exfacie and entirely wrong since there was no time limit fixed by the trial

Court.

However, the lower Court as an execution Court should not probe the matters which have to be considered only by the trial Court. The plea

of the Respondent before the lower Court that agreement of sale was forged cannot be considered by the lower Court. According to the judgment

of Hon''ble Apex Court reported in Kumar Dhirendra Mullick and Others Vs. Tivoli Park Apartments (P) Ltd., ., The following principles have

been laid down.

In the case of K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar it has been held as follows: (SCC P.633, Para4)

It is perfectly open to the Court in control of a suit for specific performance to extend the time for deposit, and this Court may do so even now

to enable the Plaintiff to get the advantage of the agreement to sell in her favour. The disentitling circumstances relied upon by the Defendant-

Respondent are offset by the false pleas raised in the course of the suit by him and rightly negatived. Nor are we convinced that the application for

consideration and extension of time cannot be read, as in substance it is, as a petition for more time to deposit. Even so, specific performance is an

equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief. The

final end of law is justice, and so the means to it too should be informed by equity. That is why he who seeks equity shall do equity. Here, the

assignment of the mortgage is not a guileless discharge of the vendor''s debt as implied in the agreement to sell but a disingenuous disguise to arm

herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires. To sterilise this decree is necessary

equity to which the Appellant must submit herself before she can enjoy the fruits of specific performance.

From the aforesaid judgment of Hon''ble Apex Court we can understand that the executing Court which has got control over the matter can

extend time for payment of the balance sale consideration and order execution thereafter, since no time limit was fixed by the trial Court.

Therefore, the time granted in this case, by the execution Court for deposit of balance sale consideration of Rs. 30,000/-within a period of 15 days

was a valid one and it was correctly complied by the Petitioner. Therefore, it cannot be said by the Respondent that the finding of the lower Court

that the balance sale consideration was not paid within time and therefore, the decree has to be rescinded.

Apart from that in the judgment of Hon''ble Apex Court reported in Parsion Devi and Others Vs. Sumitri Devi and Others, , it has been

categorically laid down as follows:

Under Order 47, Rule 1 Code of 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-evidence and has to be directed 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 Code of CPC it is not permissible for an erroneous decision to be ""reheard and corrected"". 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. A review petition has a limited purpose and cannot be allowed to be ""an appeal in disguise.

In the said judgment, it has been categorically laid down that the lower Court cannot sit in appeal and once again decide the case under the

guise of the review. It is further held that any mistake apparent on the face of the record committed by the lower Court should have been corrected

and nothing more. As far as the present case is concerned, the lower Court was originally of the opinion that all the contentions raised in O.E.A.

No. 25 of 2007, an application filed by the Respondent for rescinding the contract should have been raised prior to the passing of the decree and

they are not germane for consideration at the execution stage. But in the review application it had categorically found, those points which are not

relevant for deciding the said case without considering the objection of the Petitioner raised therein and had come to a conclusion to sit over the

said decision and set aside the same. The said order passed by the lower Court in O.E.A. No. 29 of 2008 was delivered like in an appeal and not

as a review application. The judgment of Hon''ble Apex Court as discussed supra and yet another judgment of Hon''ble Apex Court reported in

The State of West Bengal and Others Vs. Kamal Sengupta and Another, would be squarely applicable to the present case. The relevant passage

would be running thus:

The term ""mistake or error apparent"" by its very connotation signifies an error which is evidence per se from the record of the case and does

not require detailed examination, scrutiny and eludication either of the facts or the legal position. If an error is not self-evident and detection thereof

requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47

Rule 1 Code of CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is

erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while

exercising the power of review the Court/Tribunal concerned cannot sit in appeal over its judgment/decision.

In the light of the judgment of Hon''ble Apex Court if we approach the order passed by the lower Court in O.E.A. No. 29 of 2008 it is nothing

but a discussion of the facts which have been already discussed in its earlier order and the reasons stated by the lower Court for reviewing its

earlier order was not for correcting its own errors, but it would be like a discussion in an appeal against the said earlier order under the guise of

review. It is the dictum of the Hon''ble Apex Court that no Court shall sit as an Appellate Authority, on its own judgment. But when the provisions

of order 47 Rule 1 Code of CPC has been transformed for an appeal and it is permitted the dictum laid down by the Hon''ble Apex Court would

be frustrated. Therefore, the orders passed by the lower Court cannot be considered as an order that was passed in a review but it was like an

order in the appeal. The reasons given by the lower Court for reviewing its earlier order are in-consistence and without any reasons. The lower

Court exceeds its jurisdiction conferred under Order 47 Rule 1 CPC. Therefore, it has become necessary for this Court to interfere and set aside

the orders passed by the lower Court in both the execution applications.

In the result, both the revision petitions are allowed and the orders passed by the lower Court are hereby set aside as not sustainable.

Accordingly, these revision petitions are allowed with costs. Consequently, connected miscellaneous petitions are closed.