Delhi High Court
Sasken Communication ... vs Prime Telesystems Ltd. & Ors. on 18 May, 2015
Author: Deepa Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.P. 16/2008
% Judgment reserved on 07.05.2015
Judgement pronounced on: 18.05.2015
SASKEN COMMUNICATION TECHNOLOGIES LIMITED
..... Decree Holder
Through: Mr.Neeraj Sharma, Ms Marisha
Shukla and Ms.Pragya Nalwa,
Advocates
Versus
PRIME TELESYSTEMS LTD. & ORS. ..... Judgment Debtors
Through: Mr Harish Malhotra, Sr.
Advocate with Mr Lovkesh
Sawhney, Adv for Judgment
Debtor No.2
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
Ex.App.No. 421/2015 in EX.P. 16/2008
1. In Execution Petition No.16/2008, an application No. 817/2014 was
moved by the Judgment Debtor No.2 to recall the orders dated 05.08.2014,
passed by this Court. This application was assigned to this Court for
disposal. It is also pertinent to mention here that the applicant had filed a
EFA(OS) No.22/2014 before the Division Bench, challenging the order of
this Court dated 05.08.2014, which was, however, dismissed as withdrawn
with liberty to make an appropriate application before the learned Single
Judge, including all the grounds on which that appeal was filed.
2. A reply was filed by the non-applicant/petitioner to the application
No.817/2014. Thereafter, during the course of arguments on 12.03.2015,
Mr.Harish Malhotra, Senior Advocate, appearing for the applicant, made a
submission to file an additional affidavit clarifying certain expressions used
in the application No.817/2014. Subsequent to that, an application bearing
EA No.266/2015 under Order 6 Rule 17 read with Section 151 was moved
by the applicant. The said application was allowed by this Court vide order
dated 10.04.2015. Thereafter, the amended application which was
numbered as EA No. 399/2015 was filed by the applicant. It was brought to
the notice of this Court that this application was not as per the amendment
sought by the applicant vide his application bearing EA No.266/2015.
Thereafter, the applicant withdrew his amended application which was
registered as EA No.399/2015 and filed another amended application which
was registered as EA No.421/2015 in terms of the amendment sought vide
its application bearing EA No. 266/2015. This EA No. 421/2015 is a
substitution by way of amendment to the application bearing EA
No.817/2014 which was assigned to this Court for disposal.
3. Arguments had been heard on this application of learned counsel for
both the parties.
4. Vide this application, the applicant, i.e., Judgment Debtor No.2 has
sought the recall of the order of this Court dated 05.08.2014 passed in
Execution Petition No. 16/2008 on various grounds. From the perusal of the
order dated 05.08.2014, it is apparent that only direction issued by this Court
vide this order in relation to Judgment Debtor No. 2 is of the following
nature:-
"JD No.2 is restrained from leaving the country
without the permission of this Court and is also
directed to be present in person on the next date of
hearing."
5. The order dated 05.08.2014 clearly shows that the ordersheet of this
date, besides the above-mentioned order, contains the submissions and
counter-submissions made by the Judgment Debtor as well as his counsel
and that of the petitioner.
6. The following principle governing the recall of the order has been
clearly held by the Supreme Court in the case of Budhia Swain vs.
Gopinath Deb (1999) 4 SCC 396:-
"In our opinion a tribunal or a court may recall an
order earlier made by it if (i) the proceedings
culminating into an order suffer from the inherent
lack of jurisdiction and such lack of jurisdiction is
patent, (ii) there exists fraud or collusion in
obtaining the judgment, (iii) there has been a
mistake of the court prejudicing a party or (iv) a
judgment was rendered in ignorance of the fact
that a necessary party had not been served at all or
had died and the estate was not represented.
The power to recall a judgment will not be
exercised when the ground for re-opening the
proceedings or vacating the judgment was
available to be pleaded in the original action but
was not done or where a proper remedy in some
other proceeding such as by way of appeal or
revision was available but was not availed. The
right to seek vacation of a judgment may be lost by
waiver, estoppel or acquiescence."
7. As per this principle, Judgment Debtor No.2 is required to show to the
Court that direction of the Court, by which he was restrained from leaving
this Court, without permission of the Court, has been passed without
jurisdiction or in ignorance of the law or the fact. The Judgment Debtor
No.2 has failed to show to this Court that such a direction is violative of his
fundamental rights or to any express provision of law. It is apparent from the
order that the Court has not put an absolute ban on his travelling abroad, but
has only conditioned it by directing the Judgment Debtor No.2 to seek
permission of this Court before leaving the country. It therefore is clear that
the applicant has failed to point out any error in the said order. He has also
failed to show that the order was passed by this Court without jurisdiction or
ignorance of law. Therefore, this part of the order does not deserve any
recall.
8. The rest of the prayer made by the Judgment Debtor No.2 in this
application for recall of the order shows that he wants to recall the
undertaking given by him on 05.08.2014, trying to impress upon the Court
that the said undertaking was given by him under a particular state of mind.
It is apparent that a Court can only recall its order, pursuant to the guidelines
given by the Supreme Court in Budhia Swain (supra) and also under the
provisions of Order 47 Rule 1 of Civil Procedure Code. A party is not
permitted to recall or withdraw his statements made before the Court in the
garb of an application, asking the Court to recall its order or to review its
order.
9. The contention of the petitioner that the Court had allowed the Decree
Holder to invoke the provisions of Order 21 Rule 30 for execution of money
decree by detention of the appellant/Judgment Debtor in civil prison is
misconceived since the order dated 05.08.2014 does not show that the Court
had issued any such directions. This Court had simply recorded the
submissions of the petitioner made by him for exercising his rights under
Order 21 Rule 30 of CPC.
10. For these reasons, the application has no merit and the same is
dismissed.
EX.P. 16/2008
The matter along with the pending applications be listed before the
Roster Bench on 20.05.2015.
DEEPA SHARMA
(JUDGE)
MAY 18, 2015
BG
