Wednesday 13 July 2016

Whether court can issue notice U/O21 R 22 of CPC if execution application is filed within two years of date of decree?

Counsel for the applicant while placing reliance upon a decision
rendered by this Court in the case of  Bajranghlal Singhania Vs Ratan
Chandra Ghosh & ors.  reported in  [2002(1) JCR 599 (Jhr)]  has also
placed reliance upon Order XXI Rule 22 of Code of Civil Procedure and
submitted that notice is required to be given to judgment­debtor when the
execution proceedings are initiated by judgment decree holder, even after
2 years of the decree. From this, no negative inference can be drawn that
there is no need of issuance of notice upon the judgment debtor when the
judgment decree holder has initiated execution proceeding within two
years. It all depends upon the facts and circumstances of the case, the
complexity of the issues, the financial aspects involved in the matter or
such other relevant aspects which may be appreciated after hearing the
judgment­debtor,   even   if   execution   proceedings   are   initiated   within   a
period of two years. Order XXI Rule 22 does not debar the learned trial
court from issuance of any notice upon the  judgment debtor, even if
execution proceedings are initiated within a period of 2 years.  
IN THE HIGH COURT OF JHARKHAND AT RANCHI
     Civil Review No. 43 of 2011 
  ­­­­­   
Tata Steel Limited, formerly M/s Tata Iron and Steel Company Limited, 
         Versus
Manager, Bihar Khadi Association, 
CORAM:  HON’BLE MR. JUSTICE D.N. PATEL  

Citation:AIR 2016 jharkhand 80        ­­­­­­­­­
Dated: 7th January, 2016

1. This civil review petition has been preferred for review of an order
passed by this Court dated 26th April, 2011 in W.P.(C) No. 1119 of 2010
which was dismissed with cost.
2. Having heard counsel for the applicant and looking to the facts and
circumstances of the case, it appears that earlier an Eviction Suit No. 59 of
2007 was preferred which was decreed vide order dated 13th July, 2009
by   Munsif,   Jamshedpur   and   thereafter,   execution   application   was
preferred by this applicant. 
3. Earlier   this   applicant   had   preferred  W.P.(C)   No.   1119   of   2010
wherein argument was canvassed that without issuing notice upon the
judgment debtors, the execution proceedings initiated by this applicant
should have been allowed by the trial court as no notice is required to be
issued upon the judgment debtors. The said argument was brushed aside
by this court vide order dated 26th April, 2011.
4. Again a very same contention is raised by this applicant that without
issuing any notice, execution proceeding initiated by this applicant should2
have   been   decided   in   favour   of   this   applicant.   This   is   nothing,   but,
repetition of the very same argument, which was brushed aside by this
Court. This review application cannot be an appeal in disguise.
5. It has been held by the Hon'ble Supreme Court   in the case of
Aribam   Tuleshwar   Sharma   v.   Aibam   Pishak   Sharma,   reported   in
(1979) 4 SCC 389, at Para no. 3 as under :
“3.  The Judicial Commissioner gave two reasons for reviewing his
predecessor’s   order.   The   first   was   that   his   predecessor   had
overlooked   two   important   documents   Exs.   A­1   and   A­3   which
showed that the respondents were in possession of the sites even in
the year 1948­49 and that the grants must have been made even by
then. The second was that there was a patent illegality in permitting
the appellant to question, in a single writ petition, settlement made
in favour of different respondents. We are afraid that neither of the
reasons mentioned by the learned Judicial Commissioner constitutes
a ground for review.     It is true as observed by this Court in     Shivdeo
    Singh      v.      State   of   Punjab      there   is   nothing   in   Article   226   of   the
Constitution to preclude a High Court from exercising the power of
review which inheres in every court of plenary jurisdiction to prevent
miscarriage   of   justice   or   to   correct   grave   and   palpable   errors
committed by it. But, there are definitive limits to the exercise of the
power of review. The power of review may be exercised on the
discovery of new and important matter or evidence which, after the
exercise of due diligence was not within the knowledge of the person
seeking the review or could not be produced by him at the time when
the order was made; it may be exercised where some mistake or
error apparent on the face of the record is found; it may also be
exercised on any analogous ground. But, it may not be exercised on
the ground that the decision was erroneous on merits. That would be
the province of a court of appeal. A power of review is not to be
confused with appellate powers which may enable an appellate court
to correct all manner of errors committed by the subordinate court.”
(Emphasis supplied)
6. It has further been held by Hon'ble Supreme Court in the case of
Meera Bhanja v. Nirmala Kumari Choudhury, reported in  (1995) 1
SCC 170, specially at Para nos. 8, 9 and 15 as under :
“8.   It is well settled that the review proceedings are not by way of
an appeal and have to be strictly confined to the scope and ambit of
Order 47, Rule 1, CPC. In connection with the limitation of the
powers of the court under Order 47, Rule 1,  while dealing with
similar jurisdiction available to the High Court while seeking to
review the orders under Article 226 of the Constitution of India, this
    Court, in the case of      Aribam Tuleshwar Sharma    v.     Aribam Pishak
    Sharma    ,   speaking   through   Chinnappa   Reddy,   J.,   has   made   the
following pertinent observations: (SCC p. 390, para 3)
“It is true as observed by this Court in  Shivdeo Singh  v.
State   of   Punjab,   there   is   nothing   in   Article   226   of   the
Constitution to preclude the High Court from exercising
the   power   of   review   which   inheres   in   every   Court   of
plenary jurisdiction to prevent miscarriage of justice or to3
correct grave and palpable errors committed by it.  But,
there are definitive limits to the exercise of the power of
review.   The   power   of   review   may   be   exercised   on   the
discovery of new and important matter or evidence which,
after   the   exercise   of   due   diligence   was   not   within   the
knowledge of the person seeking the review or could not
be produced by him at the time when the order was made;
it may be exercised where some mistake or error apparent
on the face of the record is found; it may also be exercised
on any analogous ground. But, it may not be exercised on
the ground that the decision was erroneous on merits. That
would be the province of a court of appeal. A power of
review is not to be confused with appellate power which
may enable an appellate court to correct all manner of
errors committed by the subordinate court.”
9. Now it is also to be kept in view that in the impugned judgment,
the Division Bench of the High Court has clearly observed that they
were entertaining the review petition only on the ground of error
apparent on the face of the record and not on any other ground. So
far as that aspect is concerned, it has to be kept in view that an error
apparent on the face of record must be such an error which must
strike one on mere looking at the record and would not require any
long­drawn   process   of   reasoning   on   points   where   there   may
conceivably   be   two   opinions.   We   may   usefully   refer   to   the
observations of this Court in the case of Satyanarayan Laxminarayan
Hegde v. Mallikarjun Bhavanappa Tirumale wherein, K.C. Das Gupta,
J., speaking for the Court has made the following observations in
connection with an error apparent on the face of the record:
An error  which  has  to  be  established by a long­drawn
process   of   reasoning   on   points   where   there   may
conceivably be two opinions can hardly be said to be an
error apparent on the face of the record. Where an alleged
error is far from self­evident and if it can be established, it
has   to   be   established,   by   lengthy   and   complicated
arguments, such an error cannot be cured by a writ of
certiorari according to the rule governing the powers of the
superior court to issue such a writ.
15. In our view the aforesaid approach of the Division Bench dealing
with the review proceedings clearly shows that it has overstepped its
jurisdiction   under   Order   47,   Rule   1   CPC   by   merely   styling   the
reasoning adopted by the earlier Division Bench as suffering from a
patent error. It would not become a patent error or error apparent in
view   of   the   settled   legal   position   indicated   by   us   earlier.   In
substance, the Review Bench has reappreciated the entire evidence,
sat almost as court of appeal and has reversed the findings reached
by the earlier Division Bench. Even if the earlier Division Bench’s
findings regarding C.S. Plot No. 74 were found to be erroneous, it
would be no ground for reviewing the same, as that would be the
function of an appellate court. Learned counsel for the respondent
was not in a position to point out how the reasoning adopted and
conclusion reached by the Review Bench can be supported within
the narrow and limited scope of Order 47, Rule 1 CPC. Right or
wrong, the earlier Division Bench judgment had become final so far
as the High Court was concerned. It could not have been reviewed
by reconsidering the entire evidence with a view to finding out the
alleged apparent error for justifying the invocation of review powers.4
Only on that short ground, therefore, this appeal is required to be
allowed. The final decision dated 8­7­1986 of the Division Bench
dismissing the appeal from Appellate Decree No. 569 of 1973 insofar
as C.S. Plot No. 74 is concerned as well as the review judgment
dated 5­9­1984 in connection with the very same plot, i.e., C.S. Plot
No. 74, are set aside and the earlier judgment of the High Court
dated 3­8­1978 allowing the second appeal regarding suit Plot No.
74 is restored. The appeal is accordingly allowed. In the facts and
circumstances of the case, there will be no order as to costs.”
(Emphasis supplied)
7. It has further been held by the Hon'ble Supreme Court  in the case of
Parsion Devi v. Sumitri Devi, reported in (1997) 8 SCC 715, specially in
Para nos. 7 to 9 as under :
“7. It is well settled that review proceedings have to be strictly
confined   to   the   ambit   and   scope   of   Order   47   Rule   1   CPC.   In
Thungabhadra Industries Ltd.  v.  Govt. of A.P.  (SCR at p. 186) this
Court opined:
“What, however, we are now concerned with is whether
the statement in the order of September 1959 that the case
did not involve any substantial question of law is an ‘error
apparent on the face of the record’). The fact that on the
earlier occasion the Court held on an identical state of facts
that a substantial question of law arose would not per se be
conclusive, for the earlier order itself might be erroneous.
Similarly, even if the statement was wrong, it would not
follow that it was an ‘error apparent on the face of the
record’, for there is a distinction which is real, though it
might not always be capable of exposition, between a mere
erroneous   decision   and   a   decision   which   could   be
characterised as vitiated by ‘error apparent’. A review is by
no   means   an   appeal   in   disguise   whereby   an   erroneous
decision is reheard and corrected, but lies only for patent
    error.  ”
8.     Again, in     Meera Bhanja   v.    Nirmala Kumari Choudhury   while
    quoting with approval a passage from     Aribam Tuleshwar Sharma   v.
Aribam      Pishak   Sharma      this   Court   once   again   held   that   review
proceedings are not by way of an appeal and have to be strictly
confined to the scope and ambit of Order 47 Rule 1 CPC.
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 self­evident 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.”
(Emphasis supplied) 5
8. It has further been held by Hon'ble Supreme Court  in the case of
Haridas Das v. Usha Rani Banik, reported in (2006) 4 SCC 78,  specially
in Para nos. 13 to 18 as under :
“13. In order to appreciate the scope of a review, Section 114 CPC
has to be read, but this section does not even adumbrate the ambit
of interference expected of the court since it merely states that it
“may make such order thereon as it thinks fit”. The parameters are
prescribed in Order 47 CPC and for the purposes of this lis, permit
the defendant to press for a rehearing “on account of some mistake
or   error   apparent   on   the   face   of   the   records   or   for   any   other
sufficient reason”. The former part of the rule deals with a situation
attributable to the applicant, and the latter to a jural action which is
manifestly incorrect or on which two conclusions are not possible.
Neither of them postulate a rehearing of the dispute because a party
had not highlighted all the aspects of the case or could perhaps have
argued them more forcefully and/or cited binding precedents to the
court   and   thereby   enjoyed   a   favourable   verdict.   This   is   amply
evident from the Explanation to Rule 1 of Order 47 which states that
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.  Where the order in
question   is   appealable   the   aggrieved   party   has   adequate   and
efficacious   remedy   and   the   court   should   exercise   the   power   to
review   its   order   with   the   greatest   circumspection.  This   Court   in
Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows: (SCR p.
186)
“[T]here is a distinction which is real, though it might not
always be capable of exposition, between a mere erroneous
decision and a decision which could be characterised as
vitiated by ‘error apparent’.  A review is by no means an
appeal   in   disguise   whereby   an   erroneous   decision   is
reheard and corrected, but lies only for patent error. …
where without any elaborate argument one could point to
the error and say here is a substantial point of law which
stares one in the face, and there could reasonably be no
two opinions entertained about it, a clear case of error
apparent on the face of the record would be made out.”
14. In Meera Bhanja v. Nirmala Kumari Choudhury it was held that:
“8. It is well settled that the review proceedings are not by
way of an appeal and have to be strictly confined to the
scope and ambit of Order 47 Rule 1 CPC. In connection
with the limitation of the powers of the court under Order
47 Rule 1, while dealing with similar jurisdiction available
to the High Court while seeking to review the orders under
    Article   226   of   the   Constitution,   this   Court,   in      Aribam
    Tuleshwar   Sharma      v.      Aribam   Pishak   Sharma      speaking
through   Chinnappa   Reddy,   J.   has   made   the   following
pertinent observations:
‘    It is true there is nothing in Article 226 of the Constitution
to preclude the High Court from exercising the power of
review which inheres in every court of plenary jurisdiction
to prevent miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are definitive6
limits to the exercise of the power of review. The power of
review   may be  exercised  on   the   discovery  of  new  and
important matter or evidence which, after the exercise of
due diligence was not within the knowledge of the person
seeking the review or could not be produced by him at the
time when the order was made; it may be exercised where
some mistake or error apparent on the face of the record is
found, it may also be exercised on any analogous ground.
But,   it   may   not   be   exercised   on   the   ground   that   the
decision   was   erroneous   on   merits.   That   would   be   the
province of a court of appeal. A power of review is not to
be confused with appellate power which may enable an
appellate court to correct all manner of errors committed
by the subordinate court.’ ” (SCC pp. 172­73, para 8)
15.  A perusal of Order 47 Rule 1 shows that review of a judgment
or an order could be sought: (a) from the discovery of new and
important   matters   or   evidence   which   after   the   exercise   of   due
diligence was not within the knowledge of the applicant; (b) such
important   matter   or   evidence   could   not   be   produced   by   the
applicant at the time when the decree was passed or order made;
and (c) on account of some mistake or error apparent on the face of
the record or any other sufficient reason.
16.     In     Aribam   Tuleshwar   Sharma    v.     Aribam   Pishak   Sharma    this
Court held that there are definite limits to the exercise of power of
review. In that case, an application under Order 47 Rule 1 read with
Section 151 of the Code was filed which was allowed and the order
passed by the Judicial Commissioner was set aside and the writ
petition was dismissed. On an appeal to this Court it was held as
under: (SCC p. 390, para 3)
“It is true as observed by this Court in  Shivdeo Singh  v.
State   of   Punjab  there   is   nothing   in   Article   226   of   the
Constitution to preclude a High Court from exercising the
power of review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct 
grave and palpable errors committed by it. But, there are
definitive limits to the exercise of the power of review. The
power of review may be exercised on the discovery of new
and important matter or evidence which, after the exercise
of   due   diligence   was   not   within   the   knowledge   of   the
person seeking the review or could not be produced by him
at the time when the order was made; it may be exercised
where some mistake or error apparent on the face of the
record is found; it may also be exercised on any analogous
ground. But, it may not be exercised on the ground that the
decision   was   erroneous   on   merits.   That   would   be   the
province of a court of appeal. A power of review is not to
be confused with appellate powers which may enable an
appellate court to correct all manner of errors committed
by the subordinate court.”
17.  The   judgment   in  Aribam   case  has   been   followed   in  Meera
Bhanja. In that case, it has been reiterated that an error apparent on
the face of the record for acquiring jurisdiction to review must be
such an error which may strike one on a mere looking at the record
and would not require any long­drawn process of reasoning. The
following observations in connection with an error apparent on the7
face   of   the   record   in  Satyanarayan   Laxminarayan   Hegde  v.
Millikarjun Bhavanappa Tirumale were also noted: (AIR p. 137)
“An error which has to be established by a long­drawn
process   of   reasoning   on   points   where   there   may
conceivably be two opinions can hardly be said to be an
error apparent on the face of the record. Where an alleged
error is far from self­evident and if it can be established, it
has   to   be   established,   by   lengthy   and   complicated
arguments, such an error cannot be cured by a writ of
certiorari according to the rule governing the powers of the
superior court to issue such a writ.” (SCR pp. 901­02)
18. It is also pertinent to mention the observations of this Court in
Parsion Devi v. Sumitri Devi. Relying upon the judgments in Aribam
and Meera Bhanja it was observed as under: (SCC p. 719, para 9)
“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 self­evident
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’.”
(Emphasis supplied)
9. Recently   in   a   case   of  Haryana   State   Industrial   Development
Corpn.  Ltd. v. Mawasi,  reported   in  (2012)  7 SCC 200,   the  Hon’ble
Supreme Court, specially in Para nos. 26 to 30 and 32 to 35, has held as
under :
“26. At this stage it will be apposite to observe that the power of
review is a creature of the statute and no court or quasi­judicial
body or administrative authority can review its judgment or order or
decision   unless   it   is   legally   empowered   to   do   so.   Article   137
empowers   this   Court   to   review   its   judgments   subject   to   the
provisions of any law made by Parliament or any rules made under
Article 145 of the Constitution. The rules framed by this Court under
that article lay down that in civil cases, review lies on any of the
grounds specified in Order 47 Rule 1 of the Code of Civil Procedure,
1908 which reads as under:
       Order 47 Rule 1:
“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 a 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 other8
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
respondent, he can present to the appellate court the case of 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.”
27. The aforesaid provisions have been interpreted in several cases.
We shall notice some of them. In S. Nagaraj v. State of Karnataka,
this Court  referred to the judgments in  Raja  Prithwi Chand Lal
Choudhury v. Sukhraj Rai and Rajunder Narain Rae v. Bijai Govind
Sing and observed: (S. Nagaraj case, SCC pp. 619­20, para 19)
“19.  Review   literally   and   even   judicially   means   reexamination
or reconsideration. Basic philosophy inherent
in it is the universal acceptance of human fallibility. Yet in
the realm of law the courts  and even the statutes lean
strongly   in   favour   of   finality   of   decision   legally   and
properly made. Exceptions both statutorily and judicially
have   been   carved   out   to   correct   accidental   mistakes   or
miscarriage of justice. Even when there was no statutory
provision and no rules were framed by the highest court
indicating the circumstances in which it could rectify its
order the courts culled out such power to avoid abuse of
process or miscarriage of justice.     In    Raja Prithwi Chand Lal
    Choudhury      v.      Sukhraj Rai      the Court observed that even
though no rules had been framed permitting the highest
court to review its order yet it was available on the limited
and narrow ground developed by the Privy Council and the
House   of   Lords.   The   Court   approved   the   principle   laid
    down by the Privy Council in     Rajunder Narain Rae   v.    Bijai
    Govind Sing     that an order made by the Court was final and
could not be altered: (Rajunder Narain Rae case, MIA p.
216)
‘…  nevertheless,   if   by   misprision   in   embodying   the
judgments,   errors   have   been   introduced,   these
courts possess, by common law, the same power
which   the   courts   of   record   and   statute   have   of
rectifying the mistakes which have crept in. … The
House   of   Lords   exercises   a   similar   power   of
rectifying   mistakes   made   in   drawing   up   its   own
judgments, and this Court must possess the same
authority.  The Lords have, however, gone  a step
further,   and   have   corrected   mistakes   introduced
through inadvertence in the details of judgments; or
have supplied manifest defects, in order to enable
the   decrees   to   be   enforced,   or   have   added
explanatory   matter,   or   have   reconciled
inconsistencies.’9
Basis for exercise of the power was stated in the same decision as
under:
‘It is impossible to doubt that the indulgence extended in
such cases is mainly owing to the natural desire prevailing to
prevent irremediable injustice being done by a court of last
resort, where by some accident, without any blame, the party
has  not  been  heard  and an  order  has  been  inadvertently
made as if the party had been heard.’
Rectification of an order thus stems from the fundamental
principle that justice is above all. It is exercised to remove the
error and not for disturbing finality. When the Constitution
was  framed  the   substantive   power  to   rectify   or   recall   the
order passed by this Court was specifically provided by Article
137 of the Constitution. Our Constitution­makers who had the
practical wisdom to visualise the efficacy of such provision
expressly   conferred   the   substantive   power   to   review   any
judgment or order by Article 137 of the Constitution. And
clause (c) of Article 145 permitted this Court to frame rules as
to the conditions subject to which any judgment or order may
be reviewed. In exercise of this power Order 40 had been
framed empowering this Court to review an order in civil
proceedings on grounds analogous to Order 47 Rule 1 of the
Civil Procedure Code. The expression, ‘for any other sufficient
reason’ in the clause has been given an expanded meaning
and a decree or order passed under misapprehension of true
state of circumstances has been held to be sufficient ground to
exercise   the   power.   Apart   from   Order   40   Rule   1   of   the
Supreme Court Rules this Court has the inherent power to
make   such   orders   as   may   be   necessary   in   the   interest   of
justice or to prevent the abuse of process of court. The court is
thus not precluded from recalling or reviewing its own order
if it is satisfied that it is necessary to do so for sake of justice.”
28.   In  Moran Mar Basselios Catholicos  v.  Most Rev. Mar Poulose
Athanasius, the three­Judge Bench referred to the provisions of the
Travancore Code of Civil Procedure, which was similar to Order 47
Rule 1 CPC and observed: (AIR p. 538, para 32)
“32. …  It is needless to emphasise that the scope of an
application for review is much more restricted than that of
an appeal. Under the provisions in the Travancore Code of
Civil Procedure which is similar in terms to Order 47 Rule 1
of our Code of Civil Procedure, 1908, the court of review
has   only   a   limited   jurisdiction   circumscribed   by   the
definitive limits fixed by the language used therein.
It may allow a review on three specified grounds, namely,
  ( i    )   discovery   of   new   and   important   matter   or   evidence
which, after the exercise of due diligence, was not within
the applicant’s knowledge or could not be produced by him
    at the time when the decree was passed, (  ii    ) mistake or
error   apparent   on   the   face   of   the   record,   and
  (    iii    ) for any other sufficient reason.
It has been held by the Judicial Committee that the words
‘any other sufficient reason’ must mean ‘a reason sufficient
on grounds, at least analogous to those specified in the
rule’.   (See  Chhajju   Ram  v.  Neki.)   This   conclusion   was
reiterated by the Judicial Committee in Bisheshwar Pratap10
Sahi v. Parath Nath and was adopted by our Federal Court
in Hari Sankar Pal v. Anath Nath Mitter, FC at pp. 110­11.
The learned counsel appearing in support of this appeal
recognises the aforesaid limitations and submits that his
case comes within the ground of ‘mistake or error apparent
on   the   face   of   the   record’   or   some   ground   analogous
thereto.”
29. In Thungabhadra Industries Ltd. v. Govt. of A.P., another threeJudge
Bench reiterated that the power of review is not analogous to
the appellate power and observed: (AIR p. 1377, para 11)
“11. …  A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected,
but lies only for patent error. We do not consider that this
furnishes a suitable occasion for dealing with this difference
exhaustively or in any great detail, but it would suffice for
us to say that where without any elaborate argument one
could point to the error and say here is a substantial point
of   law   which   stares   one   in   the   face,   and   there   could
reasonably be no two opinions, entertained about it, a clear
case of error apparent on the face of the record would be
made out.”
30.  In  Aribam Tuleshwar Sharma  v.  Aribam Pishak  Sharma, this
Court answered in affirmative the question whether the High Court
can review an order passed under Article 226 of the Constitution
and proceeded to observe: (SCC p. 390, para 3)
“3. … But, there are definitive limits to the exercise of the
power of review. The power of review may be exercised on
the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within
the knowledge of the person seeking the review or could
not be produced by him at the time when the order was
made; it may be exercised where some mistake or error
apparent on the face of the record is found; it may also be
exercised on any analogous ground. But, it may not be
exercised on the ground that the decision was erroneous
on merits. That would be the province of a court of appeal.
A power of review is not to be confused with appellate
powers which may enable an appellate court to correct all
manner of errors committed by the subordinate court.”
32. In Parsion Devi v. Sumitri Devi, the Court observed: (SCC p. 719,
para 9)
“9. … An error which is not self­evident 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 …  A review petition, it must be remembered has a
limited purpose and cannot be allowed to be ‘an appeal in
disguise’.”
33. In Lily Thomas v. Union of India, R.P. Sethi, J., who concurred
with S. Saghir Ahmad, J., summarised the scope of the power of
review in the following words: (SCC p. 251, para 56)
“56. … Such powers can be exercised within the limits of
the statute dealing with the exercise of power. The review
cannot be treated like an appeal in disguise. The mere
possibility of two views on the subject is not a ground for11
review.   Once   a   review   petition   is   dismissed   no   further
petition of review can be entertained. The rule of law of
following the practice of the binding nature of the larger
Benches and not taking different views by the Benches of
coordinated   jurisdiction   of   equal   strength   has   to   be
followed and practised.”
34. In Haridas Das v. Usha Rani Banik, the Court observed: (SCC p.
82, para 13)
“13. … The parameters are prescribed in Order 47 CPC and
for the purposes of this lis, permit the defendant to press
for   a   rehearing   ‘on   account   of   some   mistake   or   error
apparent   on   the   face   of   the   records   or   for   any   other
sufficient reason’. The former part of the rule deals with a
situation attributable to the applicant, and the latter to a
jural action which is manifestly incorrect or on which two
conclusions are not possible.  Neither of them postulate a
rehearing   of   the   dispute   because   a   party   had   not
highlighted all the aspects of the case or could perhaps
have   argued   them   more   forcefully  and/or   cited  binding
precedents to the court and thereby enjoyed a favourable
verdict.”
35.  In  State of W.B.  v.  Kamal Sengupta, the Court considered the
question whether a Tribunal established under the Administrative
Tribunals   Act,   1985   can   review   its   decision,   referred   to   Section
22(3) of that Act, some of the judicial precedents and observed:
(SCC p. 633, paras 21­22)
“21.  At this stage it is apposite to observe that where a
review is sought on the ground of discovery of new matter
or evidence, such matter or evidence must be relevant and
must be of such a character that if the same had been
produced, it  might have  altered  the  judgment. In  other
words,   mere   discovery   of   new   or   important   matter   or
evidence   is   not   sufficient   ground   for   review   ex   debito
justitiae. Not only this, the party seeking review has also to
show   that   such   additional   matter   or   evidence   was   not
within its knowledge and even after the exercise of due
diligence, the same could not be produced before the court
earlier.
22.   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 or
the   legal   position.   If   an   error   is   not   self­evident   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 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.”
(Emphasis supplied)12
10. In view of the aforesaid decisions, I see no reason to review an order
dated 26th April, 2011 passed in W.P.(C) No. 1119 of 2010.
11. Counsel for the applicant while placing reliance upon a decision
rendered by this Court in the case of  Bajranghlal Singhania Vs Ratan
Chandra Ghosh & ors.  reported in  [2002(1) JCR 599 (Jhr)]  has also
placed reliance upon Order XXI Rule 22 of Code of Civil Procedure and
submitted that notice is required to be given to judgment­debtor when the
execution proceedings are initiated by judgment decree holder, even after
2 years of the decree. From this, no negative inference can be drawn that
there is no need of issuance of notice upon the judgment debtor when the
judgment decree holder has initiated execution proceeding within two
years. It all depends upon the facts and circumstances of the case, the
complexity of the issues, the financial aspects involved in the matter or
such other relevant aspects which may be appreciated after hearing the
judgment­debtor,   even   if   execution   proceedings   are   initiated   within   a
period of two years. Order XXI Rule 22 does not debar the learned trial
court from issuance of any notice upon the  judgment debtor, even if
execution proceedings are initiated within a period of 2 years.  
12. As a cumulative effect of the aforesaid facts, reasons and judicial
pronouncements,   we   see   no   reason   to   entertain   this   Civil   Review
Application. Thus, there being no substance, this Civil Review Application
is hereby, dismissed. 
                (D.N. Patel, J.)
VK
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