S.K. Gupta And Others vs Kuldeep Singh And Others
2011 Latest Caselaw 2156 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              REV. PET. NO. 210/2010 IN FAO (OS) 110/2000

%                                               Decided on: 25th April, 2011

S.K. GUPTA AND OTHERS                                       ..... Petitioners
                  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 Petitioners who were the Appellants in FAO

(OS) 110/2000 seek review of the judgment dated 19 th February, 2010

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

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

the Respondent 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, agreed to be sold for `14 lakhs, whereunder 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 Review Petitioners/Appellants/Defendants

in the suit failed to file their written statements.

3. Against the decree dated 30th April, 1984 the Petitioners/Appellants

filed an appeal which was dismissed as time barred on the 29 th 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. After the

decree was passed the Petitioners/Appellants filed an application being IA No.

4274/1999 under Section 28 of the Specific Relief Act, 1963 (in short „the

Act‟) seeking rescission of the Agreement to Sell dated 29th/30th July, 1980

and the decree dated 30th April, 1984. By the application under Section 28 of

the Act filed on 24th April, 1999, rescission of the contract was sought on,

inter alia, the following grounds; that the balance amount of `12.60 lakhs was

not paid or deposited within the reasonable time, so the Plaintiff has lost its

right for specific performance; since the passing of the decree the land rates in

Delhi had increased and thus, it was inequitable, unjust and unconscionable if

the Defendants/Judgment Debtors were required to pay the unearned increase

in land price; the Defendants were willing to refund the amount of `1.40 lakhs

with an interest @15% p.a. and reasonable compensation and it was just,

proper and equitable to rescind the agreement and the decree.

4. The learned Single Judge dismissed the said application on the ground

that the balance amount of `12.60 lakhs was payable to the Defendants at the

time of execution and registration of the requisite conveyance deed and

against simultaneous delivery of possession of the property (except one

garage possession of which was given to the plaintiff/decree holder at the time

of agreement to sell); that for completing the transfer the defendants/judgment

debtors were obliged to (i) apply to the L&DO/Lessor, for grant of permission

to sell the aforesaid property to the plaintiff and pay unearned increase in land

price to the Lessor; (ii) seek permission of the competent authority under the

Urban Land (Ceiling & Regulation) Act, 1976 to sell the property etc. and as

per the terms of the contract it was clear that nothing was to be done by the

Plaintiff till the Defendants/Judgment Debtors had obtained the permissions

and clearance from various authorities and the Defendants were not in a

position to get the Sale Deed executed and registered with clear title in favour

of the Plaintiff; the possession was to be given simultaneously when the

balance amount would be payable by the Plaintiff/Decree Holder; the

Defendants in the application had not pleaded that they had performed their

obligation envisaged in the agreement for sale. It was also held that under

Article 136 of the Limitation Act, 1963 the period of limitation for execution

of the decree for specific performance was 12 years from the date "when the

decree becomes enforceable or where the decree or any subsequent order

directs any payment of money or the delivery of any property to be made at

certain date or at recurring periods when default in making the payment of

delivery in respect of which execution is sought takes place." Thus, while

dismissing the application under Section 28 of the Act vide order dated 23 rd

February, 2000 it was held that no default had taken place on the part of the

Plaintiff, on the other hand the Defendants were in default and under Section

28 of the Act no one can take benefit of his own faults and defaults.

5. This order dated 23rd February, 2000 dismissing IA No. 4274/1999

under Section 28 of the Act in Suit No. 280/1982 was challenged in FAO

(OS) 110/2000. In the meantime, the Review Petitioner No.4 also filed

objections under Section 47 CPC being Execution Application No. 110/1991

in Execution No. 164/1990 which application was also dismissed. The

principal objection in Execution Application No. 110/1991 was the non-

executability of the decree which objection was rejected vide order dated 1 st

February, 2002. Execution Application No. 111/1991 in Execution No.

164/1990 was an application filed by Shri Rajender Kumar (minor) under

Order XXI Rule 58 read with Section 151, 94 CPC that he was the co-owner

of the suit property and therefore, the decree in question could not be executed

to his detriment. Since no decree was passed against the 1/24 th share of

Rajender Kumar thus, this Application No. 111/1991 was also dismissed vide

order dated 1st February, 2002. Against the two orders dated 1st February,

2002 the Review Petitioner/Appellant No.4 filed FAO (OS) 66/2002 and

Rajinder Kumar filed EFA 4/2002. Since the background facts of these

appeals were common FAO (OS) Nos. 110/2000, 66/2002 and EFA No.

4/2002 were heard together. This Court dismissed all the three appeals vide

judgments dated 19th February, 2010.

6. Besides the present review petition, a review petition has also been filed

in FAO (OS) 66/2002. It may be noted that earlier also all these matters were

heard, however in view of the decision of the Hon‟ble Supreme Court in

Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan, 2003 (1) SCC 197 this Court

on 17th February, 2003 de-reserved EFA (OS) 4/2002 for rehearing and

consequently FAO (OS) 66/2002 and FAO (OS) 110/2000 were also de-

reserved. When all the three appeals were finally heard in January, 2010 no

reference was made to Lakshmi Ram (Supra) by the learned counsel for the

Appellant. No application for review has been filed in EFA (OS) 4/2002

which was earlier de-reserved in view of the decision in Lakshmi Ram (supra)

7. In FAO (OS) 110/2000 this Court while agreeing with the analysis of

the learned Single Judge held that no preliminary or prior obligation was cast

on Kuldeep Singh under the Agreement to Sell dated 29th/30th July, 1980 and

in fact the duty to ensure the performance of the agreement to sell was on the

Judgment Debtors. There was nothing to suggest that the judgment debtors

carried out their part of the agreement to sell and Kuldeep Singh thereafter

failed or was unwilling to carry out his obligation under the agreement,

namely making the balance payment of `12.60 lakhs. On the contrary this

Court required Kuldeep Singh to deposit the balance consideration and an

amount towards unearned increase demanded by L&DO by 11th January, 2010

vide order dated 6th January, 2010 which he did and thus dismissed the appeal.

By the present review petition it is contended that vide the decree dated 30 th

April, 1984 it was directed:

"i. The Pltf-DH to pay charges to the concerned authorities and Officer of the Court to obtain the necessary permissions (clauses F,G & H); and ii. Pending the completion of all jobs by Df-JDs, the Pltf-

DH was permitted to deposit the balance money in court which was to be released only on completion of all formalities."

8. According to the Review Petitioners, the plaintiff/decree holder did not

comply with his obligation for 25¾ years and now when the prices had

increased from `15 lakhs to 60 crores he sought to deposit this money by

giving an impression to this Court as if till now he did not have the permission

to deposit the money. It is further contended that the judgment under review

is contrary to the binding precedents and is thus required to be reviewed. This

Court was bound to consider Lakshmi Ram (Supra) and a binding precedent

having not been considered by this Court is a sufficient ground to re-hear the

matter. Even if the counsel for the Appellant failed to bring to the notice of

the Court the binding precedent still the non-consideration thereof is a ground

to review the judgment. In the appeal, the Appellant‟s stand was that although

no fixed time period was prescribed however the decree itself enabled the

deposit of the balance amount pending grant of permission and thus in terms

of Section 28 of the Act this Court wrongly directed to deposit the balance

amount on 6th January, 2010. Moreover, if no time is prescribed it cannot be

said that no time started to run since 1984. This Court failed to consider

Order XX Rule 12 (A) CPC which provides that decree shall specify the

period within which the payment shall be made and if no time is prescribed

then the deposit has to be made within a reasonable time and the reasonable

time starts to run from the date of the decree. The judgment under review is

not a case of erroneous decision for which undoubtedly an appeal would lie

but a case of error apparent on the face of record and thus this review petition

is maintainable. Reliance is placed on Thungbhadra Industries vs. State of

Andhra Pradesh AIR 1964 SC 1372, S. Satnam Singh vs. Surender Kaur, 2009

(2) SCC 562; Bhupinder Kumar vs. Angrej Singh 2009 (8) SCC 766, Praful

Vasani vs. Mohammed Yunus Khan, 2009 (1) BomCR 478; Sri Krishna Salt

Works vs. State of Andhra Pradesh 2003 (4) ALT (DB); Narasimhan vs.

Balammal, 1988 (2) M.L.J 211; Raju Naidu vs. M. Kolanidsamy, 1998 (2)

CTC 585; Parvesh Kumar Gulati vs. Darshan Singh Gulati, 69 (1997) DLT

996 and V.S. Palanichamy Chettiar Firm vs. C. Alagappan, AIR 1999 SC 918.

9. On the contrary, learned counsel for the Respondent contends that the

contention of delay in filing the execution of the decree was raised before the

Single Judge in the application under Section 28 of the Specific Relief Act but

was dismissed vide judgment dated 23rd February, 2000 while dismissing the

I.A. No. 427/1999 in Suit No. 280/1982. No contention of delay in filing the

execution was raised at the time of hearing of the appeal i.e. FAO(OS)

110/2010. Thus, this argument cannot not be raised in the present review

petition. The finding of fact by the learned Single Judge vide judgment dated

23rd February, 2000 that the execution was filed within the time has become

final and in the garb of this review petition, re-hearing of the appeal is not

permissible in law. In fact, the practice of filing a review petition by engaging

another counsel and thus re-agitating the entire matter has been deprecated by

the Hon‟ble Supreme Court in Tamil Nadu Electricity Board vs. N. Raju

Reddiar & Anr., 1997 (9) SCC 736. The entire case of the Respondent is

based on the time-scale now presented to this Court, thus contending that the

decree holder after 25 and a half years on the 6th January, 2010 cannot be

permitted to deposit the amount in the court. The delay in the present case has

been entirely on account of the review petitioners/judgment debtors. The

Respondent No.1/Decree Holder filed the execution petition in the year 1990

for execution of the decree dated 30th April, 1984 well within the stipulated

period of limitation. Though, the objections were filed immediately thereafter

by the Review Petitioners, however, the same remained pending and were

ultimately rejected by the learned Single Judge vide order dated 1st February,

2002 i.e. after 11 years. After the rejection of the objection petition, an appeal

FAO(OS) 66/2000 was filed by the Review Petitioners/Judgment Debtors

which was ultimately dismissed in February, 2010 and after the said decision,

now the present review has been filed. Thus, the Decree Holder cannot be

penalized and would not be responsible for this period as the matter remained

sub-judice. Moreover, the Review Petitioners themselves filed an application

for rescission of the contract under Section 28 of the Specific Relief Act in

September, 1999 i.e. after 15 years of the decree dated 30 th April, 1984 and 9

years after filing of the execution petition. While dismissing the application

under Section 28 of the Act on 23rd February, 2000, it was categorically held

by the learned Single Judge that there was no prior obligation on the part of

the Decree Holder to deposit any money, rather as per the sequence of

obligations it was the Judgment Debtors who were to first perform their

obligations and only thereafter the Respondent No.1/Decree Holder was to

perform his obligations. It is contended that reversing the said finding arrived

at both by the Single Judge and the Division Bench is within the scope of an

appeal and not a review petition. Replying to the contention that the

agreement to sell, specific performance of which is decreed, was not even

placed on record in the suit much less being exhibited, thus no enforcement

thereof could be directed, it is stated that the essential clauses of the

agreement to sell were incorporated in the plaint and the decree dated 30th

April, 1984 extensively records the sequence of obligations of the seller and

the purchaser as per the judgment of the learned Single Judge dated 30the

April, 1984. While dismissing the application under Section 28 of the

Specific Relief Act, the learned Single Judge recorded the agreement to sell as

under:

"The terms of the agreement for sale have been pleaded in the plaint. The defendants No.1 to 8 had agreed to sell the property for a consideration of Rs. 14.00 lakhs out of which the defendants had received Rs. 1.40. lakhs as advance; (2) the balance amount of Rs.12.60 lakhs was payable to the defendants at the time of execution and registration of the requisite conveyance deed and against the simultaneous delivery of possession of the property (except one garage, possession of which was given at the time of agreement to sale); (3) for completing the transfer, the defendants were obliged to (i) apply to the L&DO/Lessor, for grant of permission to sell the aforesaid property to the plaintiff and pay unearned increase in land price to the Lessor; (ii)

to seek permission of the competent authority under the Urban Land (Ceiling & Regulation) Act, 1976 (ULCRA) to sell the property; (iii) to obtain Income Tax Clearance Certificate; (iv) to obtain Estate Duty Clearance in respect of the share of the deceased Din Dayal; (v) to satisfy the plaintiff of compliance of these within a period of one month of receipt of these permissions; (4) to execute and get registered a conveyance deed free from encumbrances when the balance amount of Rs.12.60 lakhs was to be paid by the plaintiff before the Sub Registrar(Assurances), New Delhi and the defendants were to handover vacant possession of the property after discharging liability in respect of house tax, lease money, electricity and water charges or other dues upto the date of delivery of possession to the plaintiff ".

10. To the issue raised in rejoinder regarding Order XXII Rule 12(A),

learned counsel for the Respondent No.1 contends that the said provision

would be attracted in a case where a decree orders the purchase money to be

paid by the purchaser, then it shall specify the period within which the

payment shall be made. The said clause however will have no application in

the present case for the reasons: -

"(i) It is the pleaded case of the judgment debtor in the application under Section 28 filed by them particularly at paras 1 and 3(a) that the judgment as also the decree did not specify any time limit. In the face of this admitted pleading the raising of the argument itself cannot be permitted, that too at the stage of review when admittedly such an argument had not been raised either before the Single Judge or before the Division Bench.

(ii) Secondly, the said argument is straightaway against the judgment of the Single Judge and the Division Bench that no time for payment of the amount by the decree holder is specified and the time for payment will commence only after the judgment debtors have performed their obligations. Hence it is submitted that acceptance of this submission is only possible after reversing the finding recorded both by the Single Judge dismissing the recession application as also the judgment of the Divisions Bench upholding the said finding. It is submitted that this is

actually the scope of an appeal and not of a review.

11. We have heard learned counsel for the parties. Vide the judgment

under review in view of the decision of the Hon‟ble Supreme Court in

Hungerford Investment Trust Ltd vs. Haridas Mundra, AIR 1972 SC 1826 and

Nathulal vs. Phoolchand, 1969 (3) SCC 120, this Court held that the learned

Single Judge determined the sequence of events and the obligations of the

parties to the contract and agreed with the analysis and the finding that no

primary or prior obligation was cast on the Respondent No.1/Decree Holder

under the Agreement to Sell dated 29-30th July, 1980. In fact, the obligation

to ensure the performance of the agreement to sell is on the judgment debtors.

There was nothing to suggest that the Judgment Debtors carried out their part

of the agreement to sell and that the Respondent No.1/Decree Holder

thereafter failed or was unwilling to carry out his obligations under the

agreement namely to make the balance payment. It was further held that on

the contrary when the Respondent No.1/Decree Holder was directed to deposit

the balance consideration and some amount on account, towards the unearned

increase demand by the L & D.O., by order dated 6th January, 2010 in FAO

(OS) 66/2000 he did so.

12. We also do not find any merit in the contention of the learned counsel

for the Petitioners that since the Agreement to Sell was not exhibited, no

decree could have been passed for the enforcement thereof and this particular

fact was not brought to the notice of this Court and since a material fact has

gone unnoticed, it is a fit case where this Court should exercise its jurisdiction

in a review petition. This Court was conscious of the fact that the decree has

been passed under Order VIII Rule 10 CPC in view of the failure of the

Petitioners/Judgment Debtors to file their written statements. Thus, there was

a deemed admission of the facts pleaded in the plaint. The Decree

Holder/Respondent No.1 had not entered the witness box and thus, the

Agreement to Sell was not exhibited. However, there is no failure of justice on

that count. The salient terms of the Agreement to Sell were incorporated in

the plaint and the learned Single Judge while deciding the application under

Section 28 of the Act returned the finding as to the sequence of the obligations

under the contract on the basis of contract itself. This Court in the judgment

under review duly noted the said findings of the learned Single Judge and

endorsed the same. Thus, it is not a case where a material document or fact

had gone unnoticed from this Court thus warranting review of its judgment.

13. In Bhupinder Kumar vs. Angrej Singh, 2009 (8) SCC 766 relied upon

by the learned counsel for the Petitioner it has been held that:

"Sub-Section (1) of Section 28 makes it clear that the Court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 given power to the Court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an

application under Section 28(1) of the Act, the Court has to see all the attending circumstances including the conduct of the parties.

Thus, a perusal of the judgment under review would show that this

Court committed no error apparent on the face of the record in permitting the

Respondent No.1 to deposit the amount in this Court vide order dated 6 th

January, 2010 even after 25¾ years of the decree.

14. The contention of the learned counsel that review petition needs to be

allowed on the issue that this Court had earlier de-reserved the matter in view

of Lakshmi Ram Bhuyan(supra) and since this binding precedent was not

considered, is wholly misconceived. In this regard, we find force in the

contention of the learned counsel for the Respondent 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, 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 162 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."

A perusal of the judgment under review would show that the issues

were considered at length and the decision in Lakshmi Ram Bhuyan(supra)

would have served no fruitful purpose to the Appellant as the same directed

only remanding the matter for correction under Section 152 Cr. P.C. As re-

produced in para 9 and 11 above, the learned Single Judge while dismissing

the application under Section 28 of the Act, recorded the terms of Agreement

to Sell and thus culled out the obligations of the parties. Thus, the reliance on

Sri Krishna Salt Works (supra) wherein it was held that non-citing of a

binding decision which is the law and has a bearing on the issue is a manifest

error and thus liable to be corrected in the review petition is misconceived.

15. No contention was raised in the course of hearing in appeal by learned

counsel for the Appellant regarding delay in filing the execution or rescission

in terms of Order XX Rule 12(A). In fact the decisions relied upon by the

Petitioners itself show that the Petitioner has to show the readiness and

willingness on his part to perform the contract. In the entire petition there is

no averment nor any positive act of the Petitioner showing readiness and

willingness on their part. From a perusal of the judgments relied upon, the

law is clear. Interference in a review petition is warranted if there is an error

apparent on the face of record and not if the Petitioner feels that it is an

erroneous decision. In the present case, there is no error apparent on the

record as neither any material document has gone unnoticed nor has any

provision of law or statute gone unnoticed nor a binding precedent has gone

unnoticed. The Petitioners cannot take advantage of their own default.

16. The reliance on Narasimhan (Supra), Raju Naidu (Supra), Parvesh

Kumar Gulati (Supra) and V.S. Palanichamy Chettiar Firm (Supra) is wholly

misconceived. The Court held that if no time is granted for payment of

money, it is settled that the principles of the Section would apply and thus it

should be paid within the reasonable time. As held earlier in the judgment

under review, this Court has categorically held that no prior obligation was

cast on the decree-holder and thus it cannot be said that the Respondent failed

to deposit the amount within the reasonable time. In V.S. Palanichamy

Chettiar Firm (supra) their Lordships observed that it was not the case of the

Respondent/Decree-holder that on account of any fault on the part of the

vendor judgment-debtor, the amount could not be deposited as per the decree.

It may be noted that the learned Single Judge and this Court in appeal have

held that there was no prior obligation on the part of the decree-holder to

deposit the money and he was bound to deposit the same only after the

judgment debtors had performed their obligation; rather when this Court

directed, the decree-holder immediately deposited the amount due.

17. Relying on S. Satnam Singh (Supra), Swaran Lata Ghosh vs. H.K.

Banerjee, 1969 (1) SCC 709 learned counsel urges that the decree does not

specify the requirements as envisaged under the Code. This Court had,

relying on binding precedents, held that the decree passed by the learned Trial

Court was a decree as per Section 2(2) CPC and re-agitation of the said issue

is nothing but re-hearing of the appeal which is impermissible in a review

petition.

18. Relying on N. Jayaraman vs. Glaxo Laboratories India Ltd., AIR 1981

Madras 258 and Praful Vasani (Supra) and All India Central Bank Employees

vs. Central Bank, 2007 (5) Bom CR 835 the Petitioner has sought to contend

that a judgment under Order VIII Rule 10 is substantially like an ex-parte

decree wherein even though there is no contest, the Court is duty bound to

apply its mind to the pleadings and come to the conclusion that a judgment

and a decree thereon can be passed. This Court has already held that in view

of the deemed admission and as the salient terms of the Agreement to Sell

were duly incorporated in the plaint, thus the judgment and decree are in

accordance with law.

19. Undoubtedly this Court is duty bound to correct a patent error which

occurs either due to mistake of facts or mistake of law and the same should be

corrected by way of a review and not leave the same to be rectified by the

Hon‟ble Supreme Court as held in Surjit Singh (supra). But, from the

aforesaid discussion we find that there is no error apparent on the face of

record, much less any non-consideration of a binding precedent or material

fact or document warranting a review of the judgment under review.

20. The petition is accordingly dismissed.

(MUKTA GUPTA) JUDGE

(BADAR DURREZ AHMED) JUDGE

25th APRIL, 2011 vn