Mohinder Kumar Gupta vs Kuldeep Singh And Others
2011 Latest Caselaw 2154 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+               REV. PET. NO. 328/2010 IN FAO (OS) 66/2002

%                                                 Decided on: 25th April, 2011

MOHINDER KUMAR GUPTA                                          ..... Petitioner
                Through:                    Mr. Arun Mohan, Sr. Advocate with
                                            Mr. A.P. Aggarwal and Mr. Arvind
                                            Bhatt, Advocates.
                          versus

KULDEEP SINGH AND OTHERS                                      ...Respondents
                 Through:                   Mr. Paramjit Singh Patwalia, Sr.
                                            Advocate with Mr. Ashok K. Mahajan
                                            and Ms. Kamlesh Mahajan, Advocates
                                            for Respondent Nos. 1 and 2.

Coram:

HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may           Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported             Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this review petition the Petitioner who was the Appellant in FAO

(OS) 66/2002 seeks review of the judgment dated 19 th February, 2010

delivered by this Court dismissing the appeal filed by the Appellant.

2. Brief facts relevant to the filing of the present review petition are that

the Respondent No. 1 Kuldeep Singh filed a suit for specific performance

based on an Agreement to sell dated 29th/30th July, 1980 in respect of property

No.9, Sunder Nagar, New Delhi valued at `14 lakhs wherein he paid 10% of

the consideration, that is `1.40 lakhs at the time of Agreement to Sell and

sought specific performance of the said agreement showing willingness to pay

the balance consideration. The suit filed on 17th February, 1982 was decreed

on 30th April, 1984 in terms of Order VIII Rule 10 CPC as despite repeated

opportunities, the Appellant/Review Petitioner and Defendants in the suit

failed to file their written statements.

3. Against the decree dated 30th April, 1984, the Petitioner/Appellant and

other judgment debtors filed an appeal which was dismissed as time barred on

the 29th March, 1985. An application under Order IX Rule 13 CPC was also

filed before the learned Single Judge which was dismissed vide order dated

15th July, 1985. The Respondent no.1/Plaintiff/Decree Holder filed Execution

Petition No. 164/190 wherein the review petitioner filed his objections which

were registered as Execution Application No. 110/1991. The principal

contention urged before the Executing Court was that the decree is not a

decree and even if it was held to be a decree, it was not an executable decree.

Both these objections were dismissed by the Executing Court and thus, feeling

aggrieved by the order dated 1st February, 2002 the Petitioner filed FAO (OS)

66/2002. Along with the petitioner/Appellant, one Rajender Kumar had also

filed his objections to the Execution being EA No. 111/1991 on the ground

that he was a minor and no decree could be executed contrary to his interest.

The learned Single Judge vide judgment dated 1 st February, 2002 dismissed

the said application on the ground that no decree has been passed against

1/24th share of the (Rajender Kumar) minor and thus there was no decree

being executed against his interest. The said Rajender Kumar filed an appeal

being EFA 4/2002 which was also dismissed by the judgment under review

dated 19th February, 2002 however, no review petition has been filed in the

said appeal.

4. In FAO (OS) 66/2002, this Court considered the contentions of the

learned counsel for the Appellant/Review Petitioner that the decree was

neither a valid decree nor was it executable. This Court following the

decisions in Diwan bros. vs. Central Bank of India, Bombay and Ors., AIR

1976 SC 1503 and Balraj Taneja & Anr. v. Sunil Madan & Anr., 1999 (8)

SCC 396 held that it was a decree. It was further held that a reading of the

plaint before the learned Single Judge shows that there was no fact that

needed to be proved despite a deemed admission. The only fact that could be

in dispute was whether Rajender Kumar is the minor son of Din Dayal or not,

but this issue was not decided by the learned Single Judge as indeed it was not

necessary to decide, given the facts of the case and the prejudice that may be

caused to Rajender Kumar in deciding the controversy notwithstanding the

earlier suit filed by Rajender Kumar. On the deemed admission of the

judgment debtors the facts that did not need to be proved were accepted and a

judgment passed against them without getting into the controversy relating to

the question whether Rajender Kumar was a minor son of Din Dayal or not.

Thus, the parameters laid down by the Hon'ble Supreme Court in Balraj

Taneja (supra) were met by the learned Single Judge and his judgment could

not be faulted.

5. The objection of the learned counsel for the Appellant/petitioner that

the Executing Court expanded the scope of original decree and thus created a

new decree was also considered in the light of the decision of the Hon'ble

Supreme Court in V. Ramaswami Ayyangar & Ors. vs. T.N.V. Kailasa Thevar,

AIR 1951 SC 891. It was held that the Executing Court has not created any

new decree nor has made any change, substantially or otherwise in the decree

as originally framed on 30 April, 1984. All that the Executing Court had done

was to enforce the decree already passed in terms of the prayer made by

Kuldeep Singh.

6. The contention that the decree was incapable of being executed as the

1/24th share of Rajender Kumar was not determined was also rejected as

Mohinder Kumar Gupta, the Appellant/Review Petitioner could not have any

independent grievance against the decree on the basis of a suit filed by

Rajender Kumar. It was held that it is well settled that the decree has to be

executed as it is and it is really Kuldeep Singh and Rajender Kumar who have

to take a call on the 1/24th share of Rajender Kumar and Mohinder Kumar

Gupta does not come into the picture at all and cannot be allowed to speak on

behalf of Rajender Kumar particularly since Rajinder Kumar had filed

independent objections to the decree.

7. By way of the present review petition the petitioner urges that it was his

contention that there was no valid decree, and thus could not be executed. In

this context reference was made to Section 2 (2) of the CPC wherein the

requirement of the decree has been set out. It was stated that though this court

considered that no adjudication was sought by the plaintiff himself that is the

right of minor Rajender Kumar however the first and the third relief in the

plaint were contingent on the determination of the right of Rajender Kumar.

In the decree as it stands both reliefs are found mentioned and there is no

adjudication as to which relief is granted after adjudicating the rights of the

minor. The reference made by the petitioner to Balraj Taneja (Supra) was to

show that the decree should be a self contained document reflecting the

ultimate conclusion. In the process of arriving at the same, this Court also

failed to appreciate that the matter was also heard and de-reserved in view of

the Lakhshmi Ram Bhuyan vs. Hari Prasad Bhuyan, 2003(1) SCC 197. Since

this Court failed to consider the binding precedent i.e. the judgment of the

Hon'ble Supreme Court in Lakhshmi Ram Bhuyan (supra) requiring a formal

and final adjudication in a suit, there is an error apparent on the face of the

record. It is next contended that the clauses in the decree have been over

looked. The agreement to sell dated 29th/30th July, 1980 was also not available

before the Court and thus was not enforceable. Since the agreement is not

part of the record as a copy of the agreement has not been exhibited nor

placed on record, this Court could not have analyzed the terms of the

agreement and this in itself is sufficient to grant review of the judgment under

review.

8. Reliance is placed on Naurata vs. Anokha, AIR 1954 Pepsu 85;

Tungbhadra Industries vs. State of Andhra Pradesh AIR 1964 SC 1372;

Swaran Lata Ghosh vs. H.K. Banerjee 1969 (1) SCC 709; Nidhi Padhi vs.

Bramhananda Padhi, 1977 Cuttack Law Times 693; N. Jayaraman vs. Glaxo

Laboratories India Ltd, AIR 1981 Madras 258; Surjit Singh vs. Union of India

AIR 1997 SC 2693; S. Satnam Singh vs. Surender Kaur, 2009(2) SCC 562;

Praful Vasani vs. Mohammed Yunus Khan, 2009 (1) Bom CR 478; Sri

Krishna Salt Works vs. State of Andhra Pradesh 2003(4) ALT 2 (DB) and

Bhupinder Kumar vs. Angrej Singh 2009(8) SCC 766.

9. Per contra, learned counsel for the Respondent contends that even the

review petition as drafted concedes that the decision of the Hon'ble Supreme

Court in Lakshmi Ram Bhuyan(supra) was not brought to the notice of this

Court at the time of hearing of the appeal. In fact, the said judgment was

deliberately kept back from the Division Bench because citing of the said

judgment would have gone against the interest of the Petitioner and even if the

Court had found that the decree was incapable of execution it would have

send the same for correction under Section 152 CPC. Merely because

Lakshmi Ram Bhuyan (supra) was not cited or considered cannot be a ground

for review. In this review it cannot be claimed that there was no valid decree

as per Section 2(2) of the CPC or that the judgment was as per Section 2(9) of

the CPC or that the decree was incapable of being executed as these issues

were argued at length and were emphatically negated by the Division Bench

on merits. Though Lakshmi Ram Bhuyan (supra) was not considered, this

Court considered a number of binding precedents which also referred to

Lakshmi Ram Bhuyan (supra). In fact the contentions raised by the Review

Petitioners are not actually to seek review but in disguise thereof to seek re-

hearing of the matter which is not permissible in law. Reliance is placed on

Hari Das vs. Usha Rani Banik & Ors. 2006 (4) SCC 78. Relying on Parsion

Devi & Ors. vs. Sumitri Devi & Ors. 1997 (8) SCC 715, it is urged that there

is a clear distinction between an erroneous decision and an error apparent on

the face of the record. While the first can only be corrected by the higher

forum, the latter can be corrected in review jurisdiction. Relying on Dokka

Samuel vs. Jacob Lazarus Chelly 1997 (4) SCC 478 it is urged that the

omission to cite an authority of law on the part of the counsel is not a ground

to review the prior judgment as the same does not amount to an error apparent

on the face of the record. In Lilly Thomas vs. UOI & Ors 2000 (6) SCC 224 it

was held that the power of review can be exercised for correction of a mistake

but not to substitute a view. Relying on Raj Pal Singh vs. UOI 2007 (94) DRJ

631, it is contended that an error which is not self evident and has to be

dictated by a process of reasoning can hardly be said to be an error apparent

on the face of the record. Possibility of a different view cannot be a ground

for review.

10. Learned counsel for the Respondent next, repelling the contention of

the learned counsel for the Petitioner that the decree was not capable of

execution, stated that this issue has been dealt in detail by the Division Bench.

It was categorically held that the decree was, in fact, clear and thus capable of

execution and further had also explicitly stated the manner in which it was to

be executed. Thus, the entire endeavour of the review petitioner is to seek

reversal of the findings recorded by the Division Bench.

11. We have heard learned counsel for the parties at length. We would like

to first deal with the scope of the review petition i.e., whether in the garb of

the present application the Petitioner seeks a review of the judgment in view

of an error apparent on the record or is seeking re-hearing of the entire appeal.

During the course of arguments one of the major grounds urged for seeking

review of the petition was that the agreement to sell, the specific performance

of which was sought by the Respondent No.1/Plaintiff/Decree Holder, was not

even placed on record and thus not exhibited during the trial of the suit. It

was contended that in the absence of the agreement to sell, no decree for

specific performance could have been passed thereon under Order VIII Rule

10 CPC. Since this was allegedly a case of non-consideration of a relevant

document and thus an error apparent on the face of the record, the review

jurisdiction was, according to the Petitioner, available as held by the Hon'ble

Supreme Court in Rajinder Singh vs. Lt. Governor, Andaman & Nicobar

2005(13) SCC 289. Under Order VIII Rule 10 CPC when the defendant fails

to file a written statement, the Court may pronounce a judgment against him.

Undoubtedly, as held in Thomas P. Abraham vs. Aleyamma Abraham,

2003(3) KLT 864 this being a discretionary remedy even when no written

statement has been filed, the Court has got the duty to examine whether the

suit can be decreed on the averments made in the plaint alone and the Court is

not bound to decree specific performance merely because it is lawful to do so,

the discretion has to be exercised on the sound legal principles. In the present

case, a perusal of the plaint showed that all the salient terms of the agreement

to sell were reproduced therein and thus the non-placing on record of the

agreement to sell was not an impediment to the Court in passing the decree.

This was not a case where a material document was ignored. Thus, the

reliance of the learned counsel for the petitioner on Naurata (Supra) and Nidhi

Padhi (Supra) is misconceived. In Naurata (Supra) the factum of the previous

suit on the same subject matter relating to the land for possession of which

Mst. Jeoni brought the litigation was not brought to the notice of the Court. In

Nidhi Padhi (supra) the factum of death of Braja Ballar Badapanda and his

legal representatives having been brought on record of the case was not

brought to the notice of the Court due to the mistake of the counsel. These

decisions have no application to the facts of the present case. The Court was

conscious of the fact while passing the judgment under review that the

judgment and decree was passed under Order VIII Rule 10 CPC on account of

the Defendants failure to file the written statement, no evidence was led and

thus the agreement to sell was not exhibited. However, the salient terms of

the agreement to sell were set out in the plaint. This Court also held that the

Executing Court did not create any new decree nor had it made any change,

substantial or otherwise in the decree as originally framed and all that was

done by the Executing Court was to enforce the decree already passed in

terms of prayers made by Kuldeep Singh.

12. The next contention of the learned counsel for the Petitioner that the

judgment under review suffers from non-consideration of a binding precedent

i.e. Lakhshmi Ram Bhuyan (supra) and even if learned counsel for the

Appellant failed to bring to the notice of the Court the said binding precedent,

the non-consideration of a binding precedent is a ground for review, is also

misconceived. This Court in the judgment under review at length considered

the two prayers in the plaint which concerned the appeal, and held that the

decree passed by the learned Single Judge was a decree as defined under

Section 2(2) of the CPC and a judgment in terms of Section 2(9) of the CPC.

It would be apt to reiterate here that FAO (OS) No. 66/2000 was not against

the judgment and decree dated 30 April, 1984 passed by the learned Single

Judge in Suit No. 280/1982. Against the said decree, the judgment debtors had

filed an appeal being RFA (OS) No.14/1985 which was dismissed as time

barred on 22nd March, 1985. An application under Order IX Rule 13 CPC was

also filed before the learned Single Judge which was dismissed by an order

dated 15th July, 1985. FAO(OS) 66/2000 in which the present Review Petition

has been filed, was filed against the order dismissing the Execution

Application No. 110/1991 filed by the Petitioner in Execution Petition No.

164/1990. Since, the Executing Court was also duty bound to look into the

fact whether it was an executable decree or not, this Court vide the judgment

under review in appeal also looked into it and held the same to be executable

and in case there was some ambiguity, the Executing Court could construe the

decree looking at the pleadings and the judgment while referring to Seth

Manak Chand vs. Chobey Manoharlal, AIR 1944 PC 46.

13. We find force in the contention of the learned counsel for the

Respondents that during the course of arguments of the appeal, learned

counsel for the Appellant did not rely on Lakshmi Ram Bhuyan(supra) as the

same would have been to his detriment. In Lakshmi Ram Bhuyan(supra) the

trial court had dismissed the suit, which dismissal was upheld in first appeal

by the learned Additional District Judge and on a second appeal to the High

Court, the Learned Single Judge observed that the decree mentioned costs

only, the reliefs claimed by the Plaintiff therein in the suit were not mentioned

and the execution was applied for wherein the learned Civil Judge held that no

formal decree regarding delivery of khas possession etc. was drawn up and

thus, the execution was liable to be stayed till preparation of a proper decree

in the suit. The learned Civil Judge on remand from the High Court

concluded that the earlier decree prepared by it was only in respect of the cost

and the decree should have contained all the reliefs claimed in the plaint and

thus directed the Sheristadar to prepare the decree as per the direction of the

High Court. This order of the learned Civil Judge was first challenged in a

Civil revision and thereafter by a Special Leave Petition before the Hon'ble

Supreme Court, wherein it was held: -

"12. In the case at hand, a perusal of the reliefs prayed for in the plaint shows that the reliefs are not very happily worded. There are some reliefs which may not be necessary or may be uncalled for though prayed. The reliefs may have been considered capable of being recast or redefined so as to be precise and specific. May be that the Court was inclined to grant some other relief so as to effectually adjudicate upon the controversy and bring it to an end. Nothing is spelled out from the appellate judgment. The Trial Court, on whom the obligation was cast by second appellate judgment to draw up a decree, was also, as its order shows, not very clear in this mind and thought it safe to proceed on an assumption that all the reliefs sought for in the plaint were allowed to the plaintiffs. The learned single Judge allowing the second appeal, should have clearly and precisely stated the extent and manner of reliefs to which the plaintiffs were found to be entitled in this view of the findings arrived at during the course of the appellate judgment. The parties, the draftsman of decree and the executing Court cannot be left guessing what was transpiring in the mind of the Judge decreeing the suit or allowing the appeal without further placing on record the reliefs to which the plaintiff are held entitled in the opinion of the Judge"

13. There is yet another infirmity. Ordinarily the decree should have been drawn up by the High Court itself. It has not been brought to the notice of this Court by the learned counsel for either parties if there are any rule framed by the high Court which countenance such a practice as directing the Trial Court to draw up a decree in conformity with the judgment of the High Court.

14. How to solve this riddle? In our opinion, the successful party has no other option but to have recourse of Section 152 of CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the application of any of the parties. A reading of the judgment of the high Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention

of the Court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention. Power of the Court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen L.J. in re Swire; Mellor V. Swire (1885) 30 Ch. D. 239, subject to the only limitation that the amendment can be made without in justice or on terms which preclude injustice. Lindley L.J. observed that if the order of the Court, though drawn up, did not express the order as intended to be made then "there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go the House of Lords by way of appeal.

15. For the foregoing reasons the appeal is allowed. The order of the Trial Court drawing up the decree is set aside. The parties are allowed liberty of moving the High Court under Section 152 CPC seeking appropriate rectification in the judgment of the High Court so as to clearly specify the extent and manner of reliefs to which in the opinion of the High Court the successful party was found entitled consistently with the intention expressed in the judgment. The delay which would be occasioned has to be regretted but is unavoidable. Once the operative part of the judgment is rectified there would be no difficulty in drawing up a decree by the High Court itself in conformity with the operative part of the judgment. If the rules of the High Court so require, the ministerial act of drawing up of the decree may be left to be performed by the Trial Court."

14. A perusal of the judgment under review would show that this Court

following the binding precedents in Diwan Bros. vs. Central Bank of India,

Bombay & Ors., AIR 1976 SC 1503, Balraj Taneja & Anr. vs. Sunil Madan &

Anr. 1999(8) SCC 396 held that the judgment and decree passed in suit No.

280/1982 was a judgment and decree as defined under Section 2 of the CPC.

It was held that a reading of the plaint before the learned Single Judge shows

that there was no fact that needed proof despite a deemed admission. The

only fact that could be in dispute was whether Rajinder Kumar is the minor

son of Din Dayal or not. But this issue was not decided by the learned Single

Judge, as indeed it was not necessary to decide, given the facts of the case and

the prejudice that may be caused to Rajinder Kumar in deciding the

controversy notwithstanding the earlier suit filed by Rajinder Kumar. On the

deemed admission of the Judgment Debtors, facts that did not need to be

proved were accepted and a judgment was passed against them, without

getting into the controversy relating to the question whether Rajinder Kumar

is the minor son of Din Dayal or not. Looked at in this light, the parameters

laid down by the Supreme Court in Balraj Taneja(supra) were met by learned

Single Judge and his judgment could not be faulted on this count. The reliance

of the learned counsel for the Petitioner on Swaran Lata Ghosh (supra) is

misconceived. In the said case the facts were disputed and despite a written

statement being filed, the judgment of trial court was held to be without

proper reasoning.

15. It was also held that in Radhey Shyam Gupta vs. Punjab National Bank

& Another, 2008(15) SCALE 24 the Supreme Court, relying upon Rajasthan

Financial Corporation vs. Man Industrial Corporation Ltd., (2003) 7 SCC

522 held that though the Executing Court cannot go beyond the decree yet it

must take the decree according to its tenor. In doing so, the Executing Court

may look at the pleadings and the judgment in the suit. In Topanmal

Chhotamal vs. Kundomal Gangaram & Ors., AIR 1960 SC 388(paragraph 4

of the Report) it was observed by the Hon'ble Supreme Court that even if the

decree is ambiguous (which is not the situation in the present case) then it is

the duty of the Executing Court to construe the decree and for this, the Court

would certainly be entitled to look at the pleadings and the judgment.

Reliance for this was placed on Seth Manakchand vs. Chaube Manoharlal,

AIR 1944 PC 46.

16. In Thungabhadra Industries (supra) relied upon by the learned counsel

for the Petitioner the Hon'ble Supreme Court held that the review by no

means was an appeal in disguise whereby an erroneous decision is re-heard

and corrected but lies only for patent error. It was observed 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.

17. In Sri Krishna Salt Works (supra) relied upon by the learned counsel

for the Petitioner the High Court clarified that non-citing of a biding decision

which is the law of the land under Article 141 of the Constitution by a counsel

gives rise to an application seeking review of the judgment on the ground that

there is an error apparent on the face of the record. It was further held that it

is not a mere failure to bring to notice of the Court a decision rendered by the

Hon'ble Supreme Court but a decision which directly had a bearing on the

issue.

18. As is apparent in the present case, this Court de-reserved EFA No.

4/2002 and the other two appeals because the decision in Lakhshmi Ram

Bhuyan(supra) came to its notice and it wanted to hear the learned counsels in

reference thereof. A perusal of Lakhshmi Ram Bhuyan (supra) shows that

their Lordships held that in case the decree is not discernible, then the decree-

holder can file an application under Section 152 CPC for correction of the

same. This obviously was not pleaded either earlier or now. Thus, this is

neither a case where any argument or a material document has gone unnoticed

or that the judgment was passed in ignorance of or against the statute or

contrary to a binding precedent of the Superior Court. From the perusal of the

facts stated above, it is clear there is no error apparent on the face, rather the

attempt of the Petitioner is to seek a re-hearing of the appeal, which is not the

scope of a review petition.

19. There is no doubt, as held by their Lordships in N. Jayaraman(supra),

that a decree under Order VIII Rule 10 is substantially an ex-parte decree,

however FAO(OS) 66/2000 was not an appeal challenging the decree but an

order challenging the objections filed in the Execution Petition. Thus, the

decision relied upon by the Petitioner would have no reliance at this stage, the

appeal challenging the decree already having been dismissed.

20. In view of the aforesaid discussion we find neither any error apparent

on the face of record nor any binding precedent, material fact, document or

argument having gone unnoticed in the judgment under review. Thus no

ground for reviewing the judgment dated 19th February, 2010 is made out.

The petition is dismissed.

(MUKTA GUPTA) JUDGE

(BADAR DURREZ AHMED) JUDGE APRIL 25th 2011 vn