Justine @ Joseph vs Mareena George
2022 Latest Caselaw 5271 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   TUESDAY, THE 17TH DAY OF MAY 2022 / 27TH VAISAKHA, 1944
                     R P NO.175 OF 2021
 AGAINST THE JUDGMENT DATED 26TH JULY 2019 IN MAT.APPEAL NO.
                        173 OF 2013
REVIEW PETITIONER/APPELLANTS:

    1     JUSTINE @ JOSEPH,
          AGED 38 YEARS
          S/O.MATHEW, VALIYAPAIKATTU HOUSE,
          ULLANAD P.O., BHARANANGANAM VILLAGE,
          MEENACHIL TALUK,
          KOTTAYAM


    2     MATHEW
          AGED 69 YEARS
          VALIYAPAIKATTU HOUSE,
          ULLANAD P.O., BHARANANGANAM VILLAGE,
          MEENACHIL TALUK,
          KOTTAYAM


    3     GRACY MATHEW
          AGED 63 YEARS
          W/O.MATHEW, VALIYAPAIKATTU HOUSE,
          ULLANAD P.O., BHARANANGANAM VILLAGE,
          MEENACHIL TALUK,
          KOTTAYAM


          BY ADVS.
          SEBASTIAN CHAMPAPPILLY
          DR.ABRAHAM P.MEACHINKARA
          SRI.GEORGE CLEETUS
          SRI.P.A.SAINUDEEN
          SMT.MARGARET MAUREEN D ROSE
                                 2

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

RESPONDENT/RESPONDENT:

          MAREENA GEORGE,
          AGED 32 YEARS, D/O.GEORGEKUTTY,
          PAIKDA HOUSE, KONIPPADU P.O.,
          MELUKAVU VILLAGE,
          KOTTAYAM DISTRICT
          BY ADVS.
          SMT.K.SUNITHA VINOD
          SMT.KALYANI.S.VINOD

     THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING
ON 31.03.2022, THE COURT ON 17.05.2022 DELIVERED THE
FOLLOWING:
                                 3

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

                            ORDER

Ajithkumar, J

This petition for review was filed by the appellants in Mat

Appeal No.173 of 2013, under Section 114 read with Order XLVII

Rule 1 and 3 of the Code of Civil Procedure, 1908.

2. Mat. Appeal No.173 of 2013 was filed by the review

petitioners challenging the judgment in O.P. No.1164 of 2010 on

the files of the Family Court, Kottayam at Ettumanoor. The

respondent had filed Mat appeal No.90 of 2013 against the said

judgment. Both the appeals were dismissed by this Court as per

the common judgment dated 26.07.2019. The petitioners

preferred a Special Leave Petition before the Hon'ble Supreme

Court of India. As per order dated 05.02.2021, the SLP which was

registered with Diary No.4489 of 2020 was dismissed. Thereafter,

the petitioners filed this petition seeking to review the judgment

dated 26.07.2019 on two grounds; firstly, finding that the

appellants are liable to return 53 sovereigns of gold ornaments to

the respondent is an error, inasmuch as this Court failed to take

into account parts of oral evidence of PWs 1 and 4 which would

establish that there was no entrustment of gold ornaments with

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

the petitioners and secondly, awarding of interest at the rate of

9% per annum is against law.

3. On 16.12.2021, when this matter came up for

consideration, the respondent entered appearance through her

counsel. Delay in filing the review petition was condoned as per

order dated 04.03.2022.

4. Heard the learned counsel appearing for the petitioners

and the learned counsel appearing for the respondents in detail.

5. The only point requiring consideration is whether there

is sufficient reason to entertain the review petition?

6. The learned counsel appearing for the petitioners would

submit that the Special Leave Petition was dismissed in limine by

the Apex Court and therefore there is no bar for filing a review

petition in the matter. A copy of the order in the SLP and a copy of

the deposition of the respondent who gave evidence of PW1 in CC

No.240 of 2011 on the file of the Judicial Magistrate of First Class

- I, Pala were produced as Annexure Nos.1 and 2 along with I.A.

No.2 of 2021. The documents are received on file.

7. Annexure 2 is a copy of the order of the Apex Court in

SLP(Civil)Diary No.4489 of 2020. The order reads, "Delay

condoned. The Special Leave Petition is dismissed. Pending

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

application stands disposed of." The learned counsel would submit

that the Apex Court did not consider merits of the SLP and by such

a dismissal, leave to appeal was declined. The result is that there

has not been a merger of the judgment in Mat appeal No.173 of

2013. Therefore, a review of the said judgment by this Court is

legally permissible. The learned counsel appearing for the

respondent would submit that the delay in filing the SLP was

condoned, for which the Apex Court considered the matter on

merits and therefore the right of the petitioners for a review is

foreclosed.

8. In Kunhayammed and others v. State of Kerala

and another [(2000) 6 SCC 359] the Apex Court held that in a

case, where a special leave petition is dismissed by a non-

speaking order, it would not be just to deprive the aggrieved

person of the statutory right of seeking relief of review before the

High Court. Therefore, the fact that the special leave petition filed

by the petitioners was dismissed as per Annexure No.2 order by

the Apex Court, is not an imprimatur to the right of seeking a

relief of review before this Court. In Khoday Distilleries Ltd.

(Now known as Khoday India Limited) and others v. Sri

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal

(under Liquidation) rep. by the Liquidator [2019 (4) SCC

376] a co-equal Bench of the Apex Court held that the decision in

Kunhayammed is an elaborate discourse based on well accepted

propositions of law and it laid down the correct law.

9. Question is whether or not the Apex Court granted

leave to appeal. Once leave is granted and the appeal is received

on file, the right to file a review petition is lost. Here although the

delay in filing the SLP was condoned, no leave was granted. So

much so, dismissal of the SLP was a dismissal in limine. Therefore,

in the light of the Principle laid down by the Apex Court in the

aforesaid decisions, a review petition in the matter is maintainable.

10. The learned counsel appearing for the petitioner

submitted that this Court mistakenly conceived the evidence

regarding operation of the locker hired by the 1st petitioner and

the respondent in their joint name in the State Bank of Travancore

resulting in the wrong finding that 53 sovereigns of gold

ornaments were entrusted with the 1st petitioner, and the same

were retained by him. The further contention is that if the

assertions of the respondent as PW1 before the Judicial Magistrate

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

of the 1st Class-I, Pala contained in Annexure 1 were taken into

account, this Court would not have taken such a view. Reasonings

to enter the finding that the gold ornaments were entrusted with

the 1st petitioner are contained in paragraph No.12 of the

judgment in Mat Appeal No.173 of 2013, which read thus:

"12. Thus, the Trial Court came to a conclusion that considering the entire facts and evidence, the respondent was given Rs. 18 lakhs as patrimony from her house and from that amount gold ornaments were purchased for Rs.9,29,399/-. Regarding the bridal costumes, the 2nd Appellant as PW-2 admitted that usual custom is to purchase bridal costumes for the bride, by the bridegroom and party. So the Trial Court found that the 1 st Appellant is not entitled to reduce any amount under the head of bridal costumes. Therefore, the Trial Court held that the Appellants are liable to return the patrimony amount of Rs. 18 lakhs, and a further amount of Rs.8,70,601/-. As regards the claim of the respondent for gold, the Trial Court held that the Appellants are liable to return 53 sovereigns of gold ornaments or its equivalent value of Rs.12,72,000 (@of Rs.24,000/- per sovereign) and that the Appellants are also liable to return the almirah and dress of the respondent or its equivalent value Rs.70,000/-."

11. This Court, in the said paragraph, considered the

evidence including the admissions of PW1, the 1 st petitioner in

detail. The petitioner cannot be heard to contend that there

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

occurred a mistake in appreciation of evidence as a reason to

review the judgment. A judgmental error is not a reviewable error.

An error in appreciation of evidence cannot be termed as an error

on the face of the record. The question then is, can the versions of

the respondent contained in Annexure 1 document be taken into

account in order to find whether there occurred an error

perceivable from the face of the records in Mat Appeal No.173 of

2013. If Annexure 1 statement contains some admission regarding

the subject matter involved in Mat Appeal No.173 of 2013 and the

same was produced before rendering the judgment in the appeal,

the contentions of the petitioners would have been sound good.

Annexure 1, at the best, contains a few statements which go

contradictory to the evidence tendered by the respondent in

O.P.No.1164 of 2010. Such contradictory statements are only

matters of appreciation of evidence and never can be a reason to

find there was error on the face of record.

12. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC

715] the Apex Court after referring to Thungabhadra

Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372], Meera

Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170]

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,

[(1979) 4 SCC 389] held thus:

"Under Order XVII Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the Court to exercise its power of review under Order XVII Rule 1 CPC. In exercise of the jurisdiction under Order XVII Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be "an appeal in disguise".

13. This principle was reiterated in Sasi (D) Through Lrs.

v. Aravindakshan Nair and Others [(2017) 4 SCC 692] and

followed by this Court in Babu M. and others v. Union of India

and others [2017 KHC 647]: [2017 (3) KLJ NOC 13].

14. A review is possible only if there is an error that strikes

on mere looking at the records. If a long drawn process such as,

appreciation of evidence by juxtaposing various depositions

thereby to find out the evidence given in case in question is

reliable or not, is not allowed under the review jurisdiction. Viewed

in the light of the law laid down by the Apex Court and this Court

in the decisions referred to above, we hold that the first ground

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

raised in the Review Petition does not fall within the scope and

ambit of Order XLVII Rule 1 of the Code.

15. As per the judgment in O.P.No.1164 of 2010, the

Family Court allowed interest at the rate of 9% from the date of

decree till realisation of the amounts awarded. The learned counsel

appearing for the petitioners would contend that the said order is

against the mandatory provisions contained in Section 34(1) of the

Code and therefore it is an error in law. Section 34(1) of the Code

reads as under:

(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(emphasis supplied)

16. As per Section 34(1) of the Code, the rate of interest

that can be awarded to be paid from the date of decree to the date

of payment shall not be more than 6% per annum.

17. In that view of that matter, we are of the view that

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

interest ordered by the Family Court, which stands confirmed by

this Court as per the judgment in Mat. Appeal No.173 of 2013, at

the rate of 9% per annum from the date of decree till realisation is

an error in law. While fixing the rate of interest for the future

period, the Court has discretion, but that discretion shall be

exercised within the limits permitted by law. Maximum rate that is

allowable is 6% per annum, whereas this Court ordered 9% per

annum. Therefore the second ground for review is sustainable.

Accordingly, we allow the review petition to the extent that

the rate of interest from the date of decree till realisation for the

amounts, which this Court has allowed the respondent to realise

from the petitioners, shall be at the rate of 6% per annum.

Sd/-

ANIL K.NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE PV

R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

APPENDIX OF RP 175/2021

PETITIONERS' ANNEXURES ANNEXURE-1 CERTIFIED COPY OF THE DEPOSITION OF THE PETITIONER AS PW-1 IN CC NO.240 OF 2011 ON THE FILE OF THE JFCM COURT ,PALA ANNEXURE-2 TRUE PRINT OUT OF THE RECORD OF PROCEEDINGS OF THE HON'BLE SUPREME COURT OF INDIA IN RESPECT OF SPECIAL LEAVE PETITION (CIVIL), DIARY NOS.4489 OF 2020 DATED 5.2.2021