Allahabad High Court
Hari Babu Shukla (Since Deceased) And 11 ... vs Board Of Revenue, U.P. At Lucknow And 18 ... on 8 May, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:74449
Court No. - 6
Case :- CIVIL MISC REVIEW APPLICATION No. - 169 of 2025
Applicant :- Hari Babu Shukla (Since Deceased) And 11 Others
Opposite Party :- Board Of Revenue, U.P. At Lucknow And 18 Others
Counsel for Applicant :- Satya Prakash Sharma
Counsel for Opposite Party :- Anupam Kulshreshtha,C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
Order on Delay Condonation Application
1. This is an application seeking condonation of delay in filing review application.
2. Delay in filing review application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
Order on Review Application
1. Heard Sri Satya Prakash Sharma, learned counsel for review-applicants/ petitioners and Sri Anupam Kulshrestha, Advocate for respondents.
2. This is a review application filed on behalf of petitioners seeking review of judgment dated 25.10.2024 passed by this Court in Writ-B No. 8182 of 1999.
3. It is not in dispute that property in question of vendor was mortgaged and without verifying the said fact original petitioner has purchased it whereas later on property was put on auction and auction purchasers have purchased it and right was created in their favour, who are respondents in writ petition. Auction proceedings were challenged at the behest of defaulters but it was decided against them. So far as original petitioner is concerned, he has not challenged the auction proceedings and otherwise also he has no right to challenge the same.
4. In aforesaid circumstances, Court has dismissed writ petition filed by original petitioner and relevant part of judgment is reproduced hereinafter:
?17. Heard learned counsel for the parties and perused the records.
18. From the aforesaid facts it is not under dispute that suit property was mortgaged by vendor even before the sale deed was executed in favour of present petitioner. It is also not under dispute that the vendor has defaulted to settle the loan amount, therefore, auction proceedings were initiated. It is also not under dispute that petitioner has never tried to repay the outstanding loan amount for redemption of mortgaged property.
19. In P. Kishore Kumar Vs. Vittal K.Pattar, 2023 INSC 1009, it has been held that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., ? no one can confer a better title than what he himself has?.
20. The objections filed by the vendor to auction proceedings were rejected by a reasoned order and a specific finding was returned that stay orders were not served upon the concerned authority and for reference relevant part of order passed by the Additional Commissioner dated 20.1.1989, whereby objections were rejected is taken note of.
21. It is also not under dispute that vendor has withdrawn his revision petition and an order was passed to dismiss it as withdrawn. A restoration application filed by present petitioner to restore it, was also dismissed by way of impugned order.
22. The argument of learned counsel for the petitioner that due process was not followed to recover the agricultural loan amount is not sustainable since the petitioner has never filed any objection before the auction proceedings were considered as well as it was never taken by the original defaulter i.e. vendor, therefore, at this stage, it could not be considered. Otherwise also, an auction proceedings were initiated and sale was confirmed in favour of concerned respondents by a due process.
23. It may be a case where the vendor has not disclosed encumbrance on suit land, that it was mortgaged in the recital of sale deed, therefore, it may be a case of cheating or fraud and for that the petitioner has a liberty to take a legal recourse, if legally permissible.
24. The argument of the learned counsel for the petitioner that stay order was served upon the concerned authority also has no legal basis since there are concurrent finding on the said issue and there is no material to contradict it. Otherwise also, petitioner could not have a better title than the vendor, since undisputedly there was a default and the land was mortgaged and neither petitioner nor its vendor has taken any steps to redeem it, therefore, all the objections of the petitioner are legally not sustainable. There is no procedural error in auction sale and its confirmation.
25. This writ petition is accordingly dismissed.?
5. Learned counsel for review-applicants/ petitioners raised various arguments and refers following paragraphs of Review Application:
"38. That respondent nos. had obtained land in dispute on the basis of fabricated auction sale proceedings held on paper only and fraud vitiated every technicality, therefore present review petition is liable to be allowed in the interest of justice.
39. That the bank neither got the alleged mortgage deed registered as required under section 9 of Act of 1973 nor got any nothing made in the remarks column of Khatauni as required under section 9-A of the Act of 1973.
40. That absolutely no attempt was made the bank to seize the tractor and sale of the same as rescribed in section 10-B of U.P. Agricultural Credit Act, 1973.
41. That the alleged mortgage of land in dispute i.e. plot no. 280 Mi. (area 8 bigha 13 biswa 12 biswansi 10 khachwansi) in favour of bank was void-ab-initio because Kali Charan was minor on the alleged date of execution of mortgage deed.
42. That mother/ natural guardian of Kali Charan was alive hence Raghuvir Singh being elder brother at the most being only de-facto guardian could not had authorized the mortgage deed on behalf of Kali Charan.
43. That mortgage qua the land in dispute of Kali Charan being void ab initio, bank was not permitted in law to enforce said mortgage vide recovery proceedings and any remedy, if any, available to bank against Kali Charan was to had been availed outside the mortgage/ contract."
6. At this stage Court also takes note of a judgment passed by Supreme Court in Sanjay Kumar Agarwal vs. State Tax Officer and another, AIR 2023 SC 5636 wherein law with regard to scope of review has been reiterated and relevant para thereof is reproduced hereinafter:
?16. The gist of the afore-stated decisions is that: -
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
(iii) 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 record justifying the court to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be ?reheard and corrected.?
(v) A Review Petition has a limited purpose and cannot be allowed to be ?an appeal in disguise.?
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.?
7. As referred in Sanjay Kumar Agarwal (supra), in order to exercise power of review there must be an error apparent on face of it. In the garb of review application the Court cannot sit as an Appellate Court, whereas in present case all the arguments are on merit of case which would not fall within any of the circumstances under which review application can be maintained. The Court after considering rival submissions has passed order under review, which cannot be reviewed on vague and unsustainable grounds.
8. I, therefore, do not find any ground to allow this review application. Dismissed accordingly.
Order Date :- 8.5.2025
AK
