Delhi High Court

M/S Formosa Plastics ... vs Ashok K Chauhan & Ors. on 20 September, 2011

Author: A. K. Pathak

          IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Review Petition No. 506/2011 in Execution Petition No.
38/1998
*

Decided on: 20th September, 2011

M/S FORMOSA PLASTICS CORPORATION, USA .......Petitioner

Through: Mr. Soli Sorabjee and Ms. Indu Malhotra, Sr. Advs. with Ms. Shyel Trehan, Adv. for the Petitioner/Decree Holder.

Vs.

ASHOK K CHAUHAN & ORS.                                   .....Defendants

                               Through:   Mr. Rajiv Nayar, Sr. Adv. with
                                          Mr. Vinay Garg, Adv. for
                                          Respondent      no.1/Judgment
                                          Debtor.
                                          Mr. Neeraj Kishan Kaul, Sr.
                                          Adv. with Mr. A.P. Singh, Adv.
                                          for Respondent nos. 2 and
                                          3/Judgment Debtors.
                                          Mr. Vikas Singh, Sr. Adv. with
                                          Mr. Rajesh Yadav, Adv. for
                                          Respondent      no.4/Judgment
                                          Debtors.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK


       1. Whether the Reporters of local papers            No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?               No

       3. Whether the judgment should be                   No
          reported in the Digest?





 A.K. PATHAK, J.(ORAL)

1. Petitioner/Decree Holder had filed an execution petition no.

38/1998 seeking execution of a foreign decree. Unfortunately,

execution petition was dismissed in default on 31st March, 2011.

2. Petitioner filed an application under Section 151 of the Code

of Civil Procedure („CPC‟ for short) seeking restoration of execution

petition. An application (E.A. No. 439/2011) under Section 5 of the

Limitation Act read with Section 151 CPC was also filed whereby it

was prayed that the delay of about 112 days in filing the application

for restoration of execution petition, be condoned. Vide judgment

dated 2nd August, 2011 both the above mentioned applications have

been dismissed. It was held that the decrees are executed by

following the procedure as laid down under Order 21 CPC, which is

a complete code in itself, providing the mode and manner in which a

decree has to be executed. Rule 105 of Order 21 CPC envisages

dismissal of an execution petition, if the decree holder fails to

appear on the date fixed for hearing. Sub-Rule 1 of Rule 106 of

Order 21 CPC prescribes remedy of restoration of execution petition.

Order 21 Rule 106(3) CPC provides limitation of 30 days from the

date of order for filing such application. Thus, it was concluded that

an application under Section 151 CPC was not maintainable and

was to be treated under Sub-Rule 1 of Rule 106 of Order 21 CPC.

Delay could not have been condoned by exercising inherent powers

of the Court, inasmuch as, applicability of Section 5 of the

Limitation was excluded in respect of applications under Order 21

CPC. The above view was taken by following the law laid down in

Damodaran Pillai and Others vs. South Indian Bank Ltd.

(2005) 7 SCC 300 wherein Supreme Court held that the Court had

no power to condone the delay in filing restoration application under

Sub-Rule 1 of Rule 106 beyond the period of 30 days from the date

of order of dismissal. Section 5 of the Limitation Act excludes

applicability of the said provision to the applications under Order 21

CPC. Since the application under Order 21 Rule 106 CPC was filed

after the period of 30 days, Court has no power to entertain the

application for restoration of execution petition beyond a period of

30 days by invoking inherent powers.

3. It is this order of which review has been sought on the ground

that earlier two vital aspects were not brought to the notice of

Court, that is, (a) judgment of Supreme Court in M.V. Al Quamar

vs. Tsavliris Salvage (International) Ltd. & Others (2000) 8 SCC

278 and (b) three Judges Bench judgment of Kailash vs. Nanhku

and Others (2005) 4 SCC 480. The ratio of the said cases have

remained unnoticed resulting in „error apparent on the face of

record‟ in the judgment dated 2nd August, 2011. The court did not

notice that the execution petition was filed under Section 44-A CPC and

not under Order 21 CPC. The law laid down in M.V. Al Quamar

(supra) Supreme Court held that there is all together different

scheme for execution of a foreign decree under Section 44-A CPC

and the time limit as prescribed under Order 21 CPC will not be

applicable to cases seeking execution of a foreign decree. Thus,

Order 21 Rule 106 was inapplicable in the present case.

Accordingly, Damodaran Pillai (supra) was also inapplicable. In

Kailash (supra), while scrutinizing Order 8 Rule 1 CPC Supreme

Court has observed that the rules of procedure are the handmaid of

justice and the procedural law will not come in the way of rendering

complete justice to the parties, inasmuch as, power of the Court is

not curtailed by the time limit as prescribed under the rules of

procedures. The effect of the judgment is that the Court has

discretion to extend time, there is no embargo. The premise and

reasoning in Damodaran‟s case are contrary to three Judges Bench

judgment of the Supreme Court in Kailash‟s case and is per

incuriam. In nutshell it is contended that the overlooking of the

above two judgments amounts to an „error apparent on the face of

record‟ necessitating review of the order dated 2nd April, 2011. By

placing reliance on Keshav Mills Co. Ltd. vs. Commissioner of

Income Tax, Bombay North (1965) 2 SCR 908, it is further

contended that in case a judgment has not been noticed due to

oversight the same will be a ground to review the earlier order.

Reliance has also been placed on a judgment rendered by Division

Bench of Mysore High Court titled Medical & Dental College vs.

Nagaraj AIR 1972 Mysore 44 (V 59 C 18) and judgment of Madras

High Court titled Natesa Naicker vs. Sambanda Chettiar (28) AIR

1941 Madras 918 on their part.

4. I am of the view that the power of Court to review its own

judgment is contained in a narrow compass. Order 47 Rule 1 CPC

provides as under :-

"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 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 other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of 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 on which he applied 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."

5. A perusal of the above provision makes it clear that court can

review its order/judgment on the discovery of new or important

matter or evidence which the applicant could not produce at the

time of initial decision despite exercise of due diligence, or the same

was not within his knowledge or if it is shown that the order sought

to be reviewed suffers from some mistake or error apparent on the

face of the record or there exists some other reason, which, in the

opinion of the court, is sufficient for reviewing the earlier

order/decision

6. In Hari Das vs. Usha Rani & Ors. (2006) 4 SCC 78,

Supreme Court has held that law does not permit rehearing of the

dispute on the ground that 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.

7. In State of West Bengal vs. Kamal Sengupta (2008) 8 SCC

612, Supreme Court has held that an order 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 on the

point of fact or law. If an error is not evident and detection thereof

requires long debate and process of reasoning, it cannot be treated

as an error apparent on the face of the record.

8. In Ramdeo Chauhan @ Rajnath Chauhan vs. Bani Kant

Das & Others JT 2010 (12) SC 516, it was held that a question

which was open to be raised in the original proceeding, but not

raised is not an error apparent on record.

9. In Inder Chand Jain vs. Motilal (2009) 14 SCC 663, it was

held review is not appeal in disguise. Review Court cannot sit in

appeal over its own order. Rehearing of matter is impressible in

law.

10. I do not find any "error apparent on the face of record" in the

impugned order of which review has been sought, this court was

conversant of the fact that execution of the foreign decree was

sought. It was observed that decrees are executed by following the

procedure laid down in order 21 of the CPC. Chapter II of CPC

provides remedy of execution of various kind of decrees. However,

mode and manner in which a decree has to be executed is laid

down under order 21 CPC. As regards M.V. Al Quamar‟ case

(supra) is concerned, the same is totally in the context of different

facts. In the said case, execution of a decree passed by High Court

of Justice, Queen‟s Bench Division, Admiralty Court, England, was

filed in Andhra Pradesh High Court, in which by way of an interim

order a vessel was arrested. The matter reached the Apex Court.

The question involved was whether execution proceedings were

maintainable before the Andhra Pradesh High Court. One of the

arguments advanced was that certain fundamental principles of

execution in India were to be followed in seeking execution of a

decree. It was contended that (a) a decree may be executed either

by court which passed it or by the court to which it has been sent

for execution (as envisaged under Section 38 CPC) (b) a decree may

be sent to another court of competent jurisdiction; the court shall

be deemed to be a court of competent jurisdiction, if such court

would have jurisdiction to try the suit where the decree was passed

(as envisaged under Section 39(1) and (3) CPC; and (c) even after

sending the decree to another court for execution, the original court

does not lose jurisdiction over the matter. After scrutinizing

relevant provisions of the Code of Civil Procedure, Supreme Court

held as under:-

"As a matter of fact this is a scheme alien to the scheme of domestic execution as is provided under Section 39(3) of the Code. The scheme under the latter section is completely a different scheme wherein the transferee court must be otherwise competent to assume jurisdiction and the general rule or the principle that one cannot go behind the decree is a permissible proposition of law having reference to Section 39(3) of the Code. Section 44(A) however is having an inbuilt scheme of execution which is not in any comparable situation which the scheme in term

of Section 39(3). One can thus from the above conclude that whereas the domestic law, execution scheme is available under Sections 37, 38, 39, 41 and 42, Section 44-A depicts an altogether different scheme for enforcement of foreign judgments through Indian Courts. Reference in this context may also be made to the provisions as contained in Order 21 Rule 22 of the Code which expressly provide that in the event of their being an application for execution and the same been taken out beyond a period of two years after the date of the decree, there is existing a mandatory obligation to serve a notice to show cause against the execution. Such a requirement of the decree being more than 2 years old is not mentioned as regards the provisions of execution of decree filed under Section 44-A. This is a new introduction in the 1976 Code and in our view substantiates the reasonings as above and supports the contention as regards two separate and independent schemes for execution."

In the above judgment, it has nowhere been held that

procedure as envisaged under Order 21 will not be applicable to the

applications filed under Section 44-A of CPC.

11. In Nanku (supra), the provisions of Order 8 Rule 1 CPC were

under the scrutiny. Order 8 Rule 1 CPC provides that defendant

shall, within 30 days from the date of service of summons on him,

present a written statement of his defence. Proviso to Order 8 Rule

1 further envisages that the court, for reasons to be recorded in

writing, can extend such period of filing of written statement but

which shall not be later than 90 days from the date of service of

summons. Order 8 Rule 1 vests power in Court to extend the period

for filing the written statement by another 60 days on the expiry of