Sri. Sabad Chandra Deka vs Smti. Naomai Deka and Others

K. Lahiri, J.—This is an application under Order 47 Rule 1 of the CPC for review of the judgment dated 10.3.83 in Civil Revision No. 138 of 1979 dismissing the application for revision filed by the present Petitioner.

Ordinarily the grounds on which a review can be asked for are (1) discovery of new or important matter or evidence which after exercise of due diligence was not within the knowledge or could not be produced by the Petitioner as the time when the order was made; (2) When on account of same mistake or error apparent on face of the record injustice has been caused to the party; and (3) for any other sufficient reason to uphold the causes of justice. In Sow Chandra Kante and Another Vs. Sheikh Habib, the Supreme Court observed:

...once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only were a glaring omission or patent mistake or like grave error has creep, in earlier by judicial fallibility, A mere repetition through different counsel of old and overruled augments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import art obviously insufficient The very strict need for compliance with these factors is the rational behind the insistence of counsel''s certificate which should not be routine affair or a habitual (sic)p. it is (sic)her fairness to the Court which decided nor bareness of the precious public time lost what with a huge duck-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Fench and the Bar, we are sure, are jointly concorned in the conservation of judicial time for maximum use.

(Emphasis supplied)

Their Lordships lemented:

Nothing which we did not bear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The prescent stage is not a virgin ground but review of an earlier order which has the normal feature of finality.

We dismiss the petition unhesitatingly, but with these observations hop fully.

(Emphasis added).

While dealing with the power of review their Lordships of the Supreme Court observed in M/s. Northern India Caterrs (India) Ltd. v. Lt. Governor of Delhi AIR WQ S.C. 674 as under:

(sic) is well stated that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make is necessary to do so. Sajjan Singh Vs. State of Rajasthan, at p. 948. For instance, if she attention if the Court is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment, Girdhari Lal Gupta Vs. D.H. Mehta and Another, at p. 760. The Court may also reopen its judgment if a (sic)anifest wrong has been done and it is necessary to pas an order to do full and effective justice, O.N. Mohindreo v. Dist. Judge, Delhi. (1911) 2 SCR 11 at p. 27. Poker to review its judgments has been conferred on the supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in 0, XLVII, Rule 1 of the CPC and in a criminal proceeding on the ground of an error apparent on the face of the record (Order X(sic) Rule 1, Supieme Court Rules, 1955). But whatevor the nature of the proceeding. it is beyond dispute 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 patent mistake or like grave error has crept in earlier by Judicial fallibility''. Sow Chandra Kante and Another Vs. Sheikh Habib,

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Such an error exists If of two or more views canvassed on the point it in possible to bold that the controversy can be said to admit of only one of them, if the view adopt d by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.

(Emphasis added).

It is therefore care that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a subitantial and compelling charactes make necessary to do so. There may his cases in which material statutory provisions were not placed before the Court, there may be circumstances imputing the Court to review its judgment if a manifest wrong has been done and it is necessary to pass an order to do fall and affective justice. But whatever may be the nature of the proceeding, it is beyond doubt that a review proceeding cannot be equated with the original bearing and the stamp of finality of the judgment delivered by the Court will not be reconsidered cx(sic)t where glaring omission or patent mistake or like grave ere(sic)nas crept in earlier by judicial fallibility. It is also evident that a mere error of fact is not an error which calls for disturbing the finality of the order, If a controversy arises as to which of the views should be taken it cannot be said a be an (sic)ror apparent on the face of the record if both the view are possible. A person has an absolute right to take another reasonable view without forfeiting his claim as a reasonable person. If a view adopted by the Court in the original order is a possible view it cannot be an error apparent on the face of the record. Of course, a review, in counsel''s mentation, cannot repait the verdict once given. However, there may be cases and cases and there may be cases other than those where the Courts may exercise power under Order 47 Rule 1, but bearing in mind the final on tranter of the order.

Let me consider this contentions of learned Counsel for the Petitioner, Mr. B.M. Goswami, in the light of the principles governing Order 47 Rule 1 of the Code. The first contention of Mr. Goswami is that the decree-holders baing in peaceful possession of the decretal land had no lonus standi to prooeed on with the execution case. This fact was not taken into consideration in the Civil Revision which has resulted in a failure of justice. The second contention is that the judgment-debtors had never dispossessed the decree-holder, So the decree-holders had no legal right to put the decree into execution afresh. The finding in the Civil Revision that the judgment-debtors managed take possession of the suit land duriug the pendency of the litigation was patently erroneous, as there was no material on record in its support. The third contention is that in Title Execution Case No. 5 of 1979, from which stemmed the Civil Revision, no averment of dispossession of the decretal lane: was ever made and as such the judgment debtor had never disturbed the decree-holders. The fourth contention is that in Title Execution Case No. 5 of 1979 the decree-holder claimed this they had never executed any decree which confirms the earlier contusion. The fifth contention is that once the decree had been excused in Title Execution Case No. 10 of 1972 there was so scope foe bringing the second or subsequent execution. The sixth contention is that the judgment-debtors were neither in possession of the decretal land nor had they dispossessed the decree-holders from the land during the pendency of any proceeding. The (sic)st contention is that the ratio of the decisions in Sewbux (sic) Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, Ghanshyam More AIR 1957 Assam 123 and Misc (Appeal) First 27 of 1960 decided on: 16.9.64 were miscoastrued of misunderstood by the Court, In view of the aforesaid errors, said to be apparent on the fact of the record, learned Counsel contends that the judgment is (sic)ble to be reviewed.

Let me deal with the first contention of learned Counsel. If the decree-holders were in peaceful possession of the decretal land, there was no (sic)thly reason for executing the decree, expending money and fighting out the litigations up to this Court. Be that as is may, what found and I have before me is that in their application No. 1373 of 1979 the decree-holders positively stated that in order to execute the decree, Police help was essential as there was possibility of assault by the judgment-debtors. The decree-holder prayed that the Nazir should be directed to handover possession and at the time of delivery of possession (Dakbai Samjai diar samayat) police should be present and the decree-holders were ready and willing to pay the requisite fees. These statements go to show that the decree-holders ware not in possession of the land. In their execution petition they prayed for possesion of the decretal land "by demolishing the houses etc. of the judgment debtors on the decretal land with the help of police and Nazir etc". To the similar effect there is an application dated 22.5.79, It appears also that the decree-holder-leposited an amount of Rs. 100/- towards payment of costs for taking ''(sic)personal) at the execution of the decree. Considering all these materials, namely, the Execution Petition, the applications filled by the decree-holder dated 21.5.79 (two in number), 28.3.70 and 30.5.79 I find that the first contention made by the Petitioner is unacceptable. All these materials go to show hat the decree-holders were not in possessions of the excretal land and they frantically asked for police help during the course of execution of the decree. So, the first contention fails.

The second contention is that the judgment-debtors did never disposess the decree-holders at any time and the findings that they could manage to re-possess the excretal land without the intervention of the Court was an erroneous finding reached by the Court. If we turn to the execution petition we find that the decree-holder asked for delivery of possession of the land by removing the houses and structures of the judgment-debtors. On the basis of the material it is reasonable to hold that there were housed and structures constructed by the judgment debtors on the decre(sic) and Further, in their application dated 28.5.79, the decree-holders clearly stated that during the pendency of the litigation the Defendants/judgment-debtors constructed two thatched houses and in anticipation of eviction in the execution proceedings people were living in those houses, and, it was prayed the houses should be demolished and the persons who were occupying the Louses should be ousted. It shows that there was a case of dispossession by the judgment-debtors during the pendency of the litigation. Mowever, Mr. Goswami submits that it was not so done during the pendency of the second appeal. If one carefully reads the order dated 21.12.73 which was extracted by the judgment-debtors in their application dated 28.5.79 that the decree-holders has executed the decree and took over the possession of the suit and on 5.9.72 before the said order was passed by the High Court. It Is therefore seen that the decree was executed on 5.9.72, whether effectively or otherwise, but admittedly two houses were constructed by the judgment-debtors after the said execution proceedings but before the execution proceeding in Execution Case No. 5/79 bad commenced. As such. the conclusion was reached in Civil Revision that the dispossession was during the pendency of the Second Appeal and/or the civil litigation. I fuel that it was a reasonable conclusion drown on proved facts. In fact, If the decree-holder had taken, possession on 5.9.72 and if the judgment-debtors did not take possession of the decretal laud thereafter the question of starting the execution proceedings against the decree-holder could not have arisen. It is thus seen that the finding of the Court in the Civil Revision is borne out from the material that the possession of the decretal laud was taken over by the judgment-debtors without the intervention of the Court, and during the continuance of the litigation. As such, the second contention fails.

The third contention overlaps the second contention. Indeed, in the application for execution there was no specific averment of dispossession. However, the facts remains that the decree-holders had obtained possession effective or otherwise, of the land on 5.9.72 and the prayer in the execution proceeding was that the houses belonging to the judgment-debtors standing on the decretal land should be demolished and the decree-holders should be put in khas possession of the land. Indsed there was no averment of dispossession by the judgment-debtors in the application, but the factum of dispossession has been asserted by the decree-holdors in their application dated 30.5.79 wherein they stated that when the First Appeal was disposed of and the suit was decreed they started the execution case, but they could not effectively take possession of the decretal land, But on the strength of the decree of the High Court in Second Appeal, it became essential to take possession of the decretal land in execution of the decree. Accordingly the present execution proceedings were started. As such, the decree-holder claimed that they had staged execution proceedings but could not get affective possession, and, after the decree of the High Court in the Second Appeal they desired to make effective execution of the decree passed by the High Court in Second Appeal. From the discussions made above it appears clear that the execution case had to be started by the decree-holder as they were ousted from possession. Admittedly when two houses were constructed by the judgment-debtors during the pendency of the civil litigations the decree holder had to take the action. It was urged vehemently that the dicree-holder never stated in their application under Order 31 Rule 11 that any other execution proceeding had been taken to execute theodores. Indeed so The decree-holder sever mentioned that they had started any excision of the decree. But Why? The decree sought to be executed was the decree of the Second Appeal, being S.A. No. 34 of 1973, decided on 21.9.78. This decree which was an executable decree was never been put to execution by the decree-holder. As such, the statement of fact cantained in the petition is well justified. In fact, the decree-holder stated in a separate application that they had executed "the curlier decree" but could not get effective possession of the disputed land. In the result the contention fails.

On consideration of Sewbux (supra), Ghanashyam More (supra) and M.A. (F) 27/60 decided on 16.9.61 it was held that the second execution of the decree was permissible No new fact or law has been placed before me to revise the said finding. Mr. Goswami has failed to convince me as to why the execution proceeding cannot be executed and/or unexecutable, on the facts and circumstances of this case, I bold the same vive as expressed in the Civil Revision. The contention fails.

The sixth contention must also fail. If there was no dispossession of the (sic)cretal land by the judgment-debtors, they have no locus standi to resist the execution proceedings when the decretal land its in exclusive possession of the decree-holder, They have resisted the execution proceeding solely on the ground that they wore in possession. If they were in possession and continued to be in possession during the pendency of the litigation, they must abide by the decree, give up possession and the decree-holder can exercise his legal right to execute the decree in ousting them from possession, as in the decree the right, title, interest and khas possession of the decree-holders have been declared. I find no errors of fact in Civil Revision No. 128 of ]979 decided on 16.3.83.

The next contention if about misconstruing the principles of law enunciated in Sewbux (supra), Sudhir Kr. Mitra (supra). I would submit that I made honest efforts to under stand the principles, exercised all possible diligence and recorded the facings. I am not fallible but I would say that nothing has been placed before me to show how and why the principles of law were misunderstood or misconstrued in the Civil Revision. Even perusal of the judgment afresh I find that the conclusion starched by me to be just, reasonable and proper construction No other contentions have been raised by Mr. Goswami who is present in Court.

For the foregoing reasons I hold that the contentions raised do not come within the purview of Order 47 Rule 1 of the CPC and the petition is misconceived. The so-called errors in the judgment of the Civil Revision are not errors but they are correct statement of facts borne out from the materials available on record. Indeed there are certain conclusions reached based on materials. They are views, There may be other views but nothing could be shown that the views I have taken were unreasonable.

In the result the petition stands dismissed. The litigation commenced about 19 years ago and yet the decree-holders have failed to reap the fruit of their litigation. Let the law laid down in peace until it is disturbed by a larger Bench of the High Court or the Hon''ble Supreme Court of India. The principle of law'' has been interpreted to uphold the cause of justice and in consonance with the principles of law enunciated by the highest Court and various High Courts of India. Indeed the decree which could have been executed about a year back has been stalled due to the pendency of the review application, Let the records be sent down forthwith to the executing Court which shall see that the parties get justice according to law. There will be no order as to costs.