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PETITIONER: DEVIDAYAL ROLLING MILLS

       Vs.

RESPONDENT: PRAKASH CHIMANLAL PARIKH AND ORS.

DATE OF JUDGMENT24/03/1993

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) VENKATACHALA N. (J)

CITATION:  1993 AIR 1982            1993 SCR  (2) 611  1993 SCC  (2) 470        JT 1993 (2)   626  1993 SCALE  (2)190

ACT: Constitution of India 1950. Articles  136, 142-Special Leave Petition-Involving  tenancy of property-petition dismissed-Interlocutory application  by third  party after 12 years alleging title to said  property and  fraud in transaction relating thereto-Held  application cannot  be  entertained in exercise of powers  either  under Article  136  or Article 142 or under Section, 47  C.P.C  in disposed of Special Leave Petition.

HEADNOTE: Father  of respondents no.1 and 2 was the owner of the  plot in  dispute  and  respondent no.3 was  the  tenant  therein. Respondents  no.1  and 2, after the death of  their  father, obtained  a decree for eviction against respondent no.3.  In the   execution  proceedings  the  petitioners  (in   S.L.P. No.4925/77)  intervened contending that they  had  purchased the business along with interest in the property in  dispute from  respondent  no.3. They filed a  declaratory  suit  for being   declared  tenant  in  the  said   property.    Their application for interim injunction to restrain respondents 1 and  2  from  executing  the decree  was  rejected  and  the revision  thereupon  was also dismissed by the  High  Court. Their  special leave petition was dismissed  on  13.12.1977. However,  respondents no. 1 and 2 agreed not to execute  the decree  before 1.1.1980 on the undertakings to be  given  by the petitioners and respondent no. 3. Later, an  application was  riled  for  declaring the  order  dated  13.12.1977  as complied  with  inasmuch as the petitioners  and  respondent no.3  had  handed  over the possession of  the  property  to Respondents  no.1  and 2. It was also stated  that  a  fresh tenancy  had been granted in favour of the petitioners  with effect from 25.6.1978. As no objection was riled, the prayer was allowed by this Court’s order dated 11.12.1978. Another   company   (the  applicant   company)   riled   the Interlocutory  Application  on 23.1.1990  in  the  dismissed S.L.P.  no.4925/77  stating  that the  property  in  dispute belonged to a private limited company of which respon 612 dents  no.1  and  2  were the only  directors;  that  by  an agreement  of  sale dated 31.7.1979  the  applicant  company

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purchased 100% shares of the company of respondents no.1 and 2 and took over the entire estates of the said company.   It was  contended  that  the  property  in  dispute  being  the property  of the company, shares of which were purchased  by the  applicant company, respondents 1 & 2 had no  right  and authority   to  create  fresh  tenancy  in  favour  of   the petitioners  on  25.6.1978;  that  respondents  no.1  and  2 practiced  a  fraud upon this Court in obtaining  the  order dated 11.12.1978 be making a false representation that  they were owners of the property in dispute.  It was prayed inter alia  that the applicant-company be impleaded as  respondent no.4  In S.L.P. No. 4925/77, the order. dated 11.12.1978  be recalled  and an order of inquiry about the fraud  practiced upon this Court be made. This  Court  by its order dated 2.4.1990 directed  the  High Court  to  decide the question of title to the  property  In dispute  and  submit Its findings to this Court.   The  High Court  held  that  the  property  in  dispute  belonged   to respondents no.1 and 2 and the applicant company was not the owner.   The  applicant  company  filed  objections  to  the findings  recorded  by the High Court  and  the  petitioners riled a counter to applicant’s objections. The  petitioners  raised  a  preliminary  objection  to  the maintainability  of  the  application (1. &  No.1  of  1990) contending   that  the  interlocutory  application  In   the dismissed  special leave petition could not be filed by  the applicant  company under any provision of law after a  lapse of  more  than  12  years;  that  besides  the  lease  dated 25.6.1978 never being the subject matter of any proceedings, the  applicant company was never a party to the suit or  the proceedings arising out of it and giving rise to the special leave petition. The  applicant  company contended that the  application  was maintainable  under Section 47 C.P.C and/or  under  Articles 136  and  142 of the Constitution inasmuch  this  Court  has appellate  powers  from  every decision of  every  Court  or Tribunal  and  Article 142 gives power to this Court  to  do justice  In  any cause or matter raised even  in  a  special leave  petition already disposed of-, that  the  petitioners having  not filed any review application against  the  order dated 2.4.1990 were bound by the principles of acquiescence, waiver  and  estoppel;  that the order  dated  2.4.1990  had become  final and it would cause Irreparable injury  to  the applicant company if that order was recalled. 613 Dismissing the interlocutory application, this Court, HELD:     1.1.  The  question of title to or  fraud  in  any transaction  in respect of an immovable property raised  for the  first time by a third party by way of an  interlocutory application in a disposed of special leave petition, can not be  gone into by this Court either in exercise of its  power under  article  136 or Article 142 of  the  Constitution  or under  Section 47 of the Code of Civil Procedure. [p p.  625 C-D; 626 F; 627 E] 1.2. The  interlocutory application riled by  the  applicant company on 23.1.1990     in   the  special  leave   petition dismissed as long ago as 12 years, was totally  misconceived and  there was no provision under which the same could  have been entertained by this Court.  Controversy regarding title to  the  property or the question of alleged  fraud  had  no relevance  even  remotely with the question  raised  in  the special   leave  petition.   According  to   the   applicant company’s own case, they had made an agreement of purchasing 100%  shares of the private limited company  of  respondents no.1 and 2 on 31.7.1979 and thereafter the applicant company

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took  over  the entire assets.  Thus the  applicant  company cannot  be said to have anything to do with the  two  orders passed by this Court on 13.12.1977 and 11.12.1978 nor  could it  be regarded as one in any way adversely affected by  the agreement dated 25.6.1978 of new tenancy as till then It had not taken any steps of purchasing the said shares. [pp.  625 B-C; 626 A-D] Union  Carbide Corporation and Others v. Union of India  and Others, [1991] 4 S.C.C. 584; inapplicable. 2.1. The  orders  dated 2.4.1990 neither decided  any  issue finally  nor did it grant implement prayed by the  applicant company  nor  can  the order be  considered  as  binding  or operative  as res judicata or otherwise.  The order  appears to have been passed under a clear misconception that it will aid  the  final decision on the application.  There  was  no proceeding  pending at all before this Court in  respect  of the  special leave petition, in which the application  could have  been  riled after a lapse of 12 years. [pp.  625  D-F; 627E-F] Satyadhyan  Ghosal  &  Ors. v. Sm.  Deorajin  Debi  &  Anr., [1960]  3  S.C.R. 590 and Y.B. Patil & Ors.  v.  Y.L.  Patil [1977] 1 S.C.R. 320, distinguish. Arjun  Singh v. Mohindra Kumar & Ors., [1964] 5 S.C.R.  947, referred to. 614 2.2. There  Is  no question of any acquiescence,  waiver  or estoppel  against  a party where the error is  committed  by this  Court  itself This Court is under a  bounden  duty  to correct its own mistake. [p. 626 F] 2.3. Accordingly,  the entire proceedings in the High  Court including the findings recorded on the question of title are non est and not binding on any of the parties concerned. [p. 627 G] 3.   So far as the question of rendering justice in a  civil litigation  is  concerned, it can only be  known  after  the final   culmination  of  such  litigation  and   the   party succeeding  can be adequately compensated by way  of  costs. [627 C-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION :  Interlocutory  Application No.1 of 1990. IN Special Leave Petition No.4925 of 1977. From  the Judgment and Order dated 13.10.1977 of the  Bombay High Court in Special Civil Application No.742 of 1977. Ram  Jethmalani,  S.K. Dholakia, P. Chidambaram,  Ms.  Bina, P.H.  Parekh, A.L. Pandya, Ms Seita Vaidyalingam,  Ms.  Rina Agarwal,  Anant Palli, Atul Sharma and E.C. Agarwal for  the appearing parties. The Judgment of the Court was delivered by KASLIWAL,  J.  A  Plot  of land  measuring  2000  sq.  yards situated at Syani Road Bombay is the subject matter of  this litigation.  One part of the case is that the above property belonged  to  Chitnanlal D. Parikh.  He executed a  will  on 20.10.1952  in  favour of his minor sons  Prakash  Chimanlal Parikh and Pankaj Chimanlal Parikh (hereinafter referred  to as  respondent  Nos.1 and 2).  Chimanlal D. Parikh  died  on 5.12.1952.  Devidayal  Rolling  and  Refineries  Pvt.   Ltd. (hereinafter   referred  to  as  respondent  No.3)  was   in occupation of the said property as a tenant.  Smt.  Mayadevi widow of Chimanlal D. Parikh and executors named in the will dated  20th  October, 1952 acting on  behalf  of  respondent

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Nos.1 and 2 filed a suit No.344 of 1958 for eviction against respondent  No.3 in the Bombay High Court.  On 31.10.1961  a consent  decree  for eviction was passed in the  above  suit with 615 the  condition that-the decree shall not be executed  for  a period  of  12 years i.e. upto  31.10.1973.  The  respondent Nos.1 and 2 in order to execute the said decree submitted an application  under  Order 21 rule 16 and Order  21  rule  22 C.P.C. in the Bombay High Court.  The said applications were allowed  and  respondent  Nos.1 and 2  were  substituted  as decree  holders  by  an  order  of  the  High  Court   dated 10.12.1973.   M/s  Devidayal  Rolling   Mills   (hereinafter referred to as "the petitioners") appeared in the  execution proceedings  and  contended  that  they  had  purchased  the business  along with interest in the disputed property  from Devidayal  Rolling  and  Refineries  Private  Limited,   the respondent  No.3. The petitioners also filed  a  declaratory suit  in January, 1974 in the Small Causes Court  at  Bombay for  being declared as tenants in the above  property.   The petitioners  also  filed an  interlocutory  application  for restraining  the respondent Nos.1 and 2 from  executing  the decree for eviction.  The respondent Nos.1 and 2 denied  any tenancy  having been created in favour of  the  petitioners. The Small Causes Court rejected the grant of any  injunction in  favour of the petitioners and a revision  filed  against the  said order was also dismissed by the High  Court.   The petitioners  then filed a Special Leave Petition No.4925  of 1977 in this Court, after the disposal of which, the present interim application No.1 has been filed. A  Bench  of  three  Judges  of  this  Court  on  13.12.1977 dismissed  the Special Leave Petition but  respondent  Nos.1 and  2 agreed not to execute the decree before 1st  January, 1980 on an usual undertaking to be given by the  petitioners as  well  as  respondent No.3. The  order  dated  13.12.1977 having  an  important bearing in the case is  reproduced  as under:- UPON hearing counsel, the Court passed the following, ORDER               "Special   Leave   Petition   is    dismissed.               However,  Respondents  1 and 2  agree  not  to               execute the decree before the 1st of  January,               1980, on the undertaking given by Mr.  Nariman               on  behalf of the petitioners  and  respondent               No.3 that the petitioners and respondent  No.3               shall hand over vacant and peaceful possession               of  the premises to respondents 1 and 2 on  or               before  the  said date.  The  petitioners  and               respondent 3 further undertake that they  will               not raise               616               any contention hereafter that they were or are               in  possession  of  the  premises  either   as               licensee  or  tenants of respondents 1  and  2               under  the unamended or the amended Rent  Act.               Arrears  of  compensation  according  to   the               consent decree shall be paid within four weeks               from  today and further compensation shall  be               paid  before  the 10th of every month  at  the               rate of Rs.4000 per month.  All other terms of               the   consent   decree   will   remain.    The               petitioner  and  respondent  No.3  shall  file               through  their Managing Director an  affidavit               in terms of this order, within two weeks". In pursuance to the above order, undertakings were filed  on

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15.1-2.1977. Subsequently an application C.M.P. No.18403  of 1978 was submitted on 8.8.1978 to the effect that after  the filing  of the undertakings the petitioners  and  respondent No.3  had handed over peaceful and vacant possession of  the premises  of respondent Nos.1 and 2 on 25th June, 1978.   It was further submitted that on 25th June, 1978 itself a fresh tenancy had been granted by respondent Nos.1 and 2 in favour of the petitioners.  A copy of the agreement granting  fresh tenancy  was  also filed along with  the  application.   The above  application was filed in view of the fresh  agreement of  tenancy  warranting the obtaining of  discharge  of  the undertaking  filed before this Court.  The following  prayer was made in the said application:               (a)   That  it  may be declared  and  recorded               that the petitioners and respondent No.3  have               duly  complied with the order of this  Hon’ble               Court  dated  13th December,  1977  Exh.   ’A’               hereto  and the undertakings recorded  in  the               said  order as well as the undertakings  given               by  Kewal  Kishan Agarwal  and  Bankey  Kishan               Agarwal   in  their  affidavits   dated   15th                             December, 1977;               (b)   That  the petitioners, respondent  No.3,               the  said  Kewal Kishan Agarwal and  the  said               Bankey  Kishan  Agarwal be relieved  on  their               respective  undertaking given by them to  this               Hon’ble  Court and recorded in the said  order               dated 13th December, 1977 Ex.  ’A’ hereto  and               the  said affidavits of Kewal  Kishan  Agarwal               and Bankey Kishan Agarwal dated 15th December,               1977 and               617               (c)   for  such further and other  reliefs  as               the nature and circumstances of the case  may,               require  for  which  act of  kindness  as  the               petitioners  have  in duty  bound  shall  ever               pray. The   above  application  came  up  for   consideration   on 11.12.1978 and was disposed of by the following order:               UPON  hearing  counsel, the Court  passed  the               following order:               The  other side has no objection.  Order  made               as prayed for’.               This concludes one part of the case. Second  part of the case is that after a lapse of nearly  12 years  of disposal of the Special Leave Petition  the  above I.A.  No.1 of 1990 has been filed on 23.1.1990 by one  Jugal Kishore  Gupta  and  for convenience  we  shall  hereinafter mention  this  application  as having  been  filed  by  ’the applicant company’.  It has been submitted on behalf of  the applicant  company that originally Chimanlal D.  Parikh  was the sole proprietor of a firm M/s Jayant Metal Manufacturing Company (in short ’JMMC’).  On 21.11.1952 the said Chimanlal D.  Parikh converted it into a partnership firm  of  himself and his Mayadevi. Chimanlal D. Parikh died on 5.12.1952. On 22.10.1963 a  deed of  partnership  was  made between Mayadevi  and  her  sons, respondents Nos.1 and 2. The business of JMMC was taken over and  continued  by  this  partnership  firm.   On  7.12.1966 Mayadevi  retired  from  the  above  partnership  firm   and respondent  Nos.1  and 2 alone continued  as  partners.   On 13.12.1971  a  private limited company was  incorporated  of which  the respondent Nos.1 and 2 alone were the  directors. On  1.9.1973  this  private limited company  also  became  a partner in the partnership firm of JMMC of which  respondent

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Nos.1 and 2 were the only partners.  By an agreement of sale dated 31.7.1979 the applicant company purchased 100%  shares of  the private limited company of respondent Nos.1  and  2. After the aforesaid agreement Jugal Kishore Gupta on  behalf of the applicant company also took over the entire-assets of the  company of respondent Nos.1 and 2 on  23.4.1980.It  has been further submitted on behalf of the applicant company 618 that  the disputed property had become the property  of  the private limited company floated by respondent Nos.1 and 2 in 1971  and respondent Nos.1 and 2 had no right to  deal  with the  property  in their individual capacity.   They  had  so right  and authority to create a fresh tenancy in favour  of the  petitioners  on 25.6.1978 and they  practised  a  fraud before  this  Hon’ble  Court in obtaining  the  order  dated 11.12.1978  by  making a deliberate  and  intentional  false misrepresentation  that they were owners of the property  in dispute and had a right to create fresh tenancy in favour of the  petitioners in their individual capacity.  It has  been further submitted that the applicant company came to know of the  above facts only after the advocate for the  applicant. made  inspection  of papers on 20th January, 1990.   In  the above circumstances the applicant company has filed the I.A. No.1 and has made the following prayers.:               The Court may be pleased to               (a)   direct  that the applicant be  impleaded               as  respondent  No.4  in  the  Special   Leave               Petition No.4925 of 1977;               (b)   order   an  enquiry  about   the   fraud               practiced   by   the   petitioner   and    the               respondents upon this Hon’ble Court and  about               any  other  point  or  points  on  which  this               Hon’ble Court deems fit to order an enquiry;               (c)   clarify  that the Undertakings given  by               the  petitioner  and respondent  No.3  was  to               hand-over  the possession to respondent  Nos.1               and  2 for and on behalf of the  applicant  as               its Directors;               (d)   take  action against the petitioner  and               respondent Nos. 1 and 3 for perjury;               (e)   vacate  the order dated  11th  December,               1978  inasmuch as respondent Nos.1 and 2  were               not competent to enter into Tenancy  Agreement               dated  25th  June, 1978  creating  tenancy  in               favour of the petitioner;               (f)   direct  the  petitioner  and  respondent               No.3 to forthwith handover vacant and peaceful               possession   of  the  suit  premises  to   the               applicant; and               619               (g)   pass  such  other and further  order  or               orders as this Hon’ble Court may deem fit  and               proper in the circumstances of the case. This application came up for consideration before this Court and the following order was passed on 2.4.1990:               "After   hearing  learned  counsel   for   the               parties,   we   find  that  in   the   present               proceedings  it  is difficult  to  decide  the               question  of  title to the  disputed  property                             which includes an approximate area of 2000  sq .               yds.  of Plot No.581 Part and 582 Part in  TPS               Scheme  IV, Mahim, Bombay, at present  in  the               possession of M/s Devidayal Rolling Mills  who               are  claiming to be protected  tenants,  under

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             the Rent Act.  Title to this property is being               claimed  by  M/s  Jayant  Metal  Manufacturing               Company  Private  Ltd.,  as  well  as  by  M/s               Prakash  Chimanlal Parikh &  Pankaj  Chimanlal               Parikh  from whom M/s Devidayal Rolling  Mills               are  claiming  to  be  tenants.   Since   this               deputed  question  cannot be  decided  in  the               present   proceedings  we  remit   the   issue               relating   to  the  title  to  the   aforesaid               property  to  the High Court,  Bombay  with  a               direction  that the question of tide  will  be               decided after given opportunity to the parties               concerned  to file affidavits,  discovery  and               leading  evidence,  etc.   After  hearing  the               parties  and examining the witnesses the  High               Court  will  record findings and  forward  the               same  to this Court for further  orders.   The               findings may be remitted to this Court  within               six months.  After the report is submitted  to               this  Court  the  parties  are  free  to  file               objections,   if  any,  within   three   weeks               thereof.  Thereafter the matter will be listed               for further orders". In compliance of the aforesaid order of this, Court the High Court framed the following two issues:               (1)   whether the property admeasuring approx.               2000  sq.  yds.  of plot No.581  (pt)  &  polt               No.582 (pt) of TPS IV, Mahim Division,  Bombay               belongs to Prakash Chimanlal Parikh and Pankaj               Chimanlal Parikh?               620               (2) whether M/s Jayant Metal Manufacturing Co.               Pvt.               Ltd. are owners of the property mentioned in Issue no.1? The  High  Court  after  discussing  the  entire   evidence, recorded  the finding on issue No.1 in the  affirmative  and that  of  issue No.2 in the negative.  As a  result  of  the above  findings, the High Court has held that  the  property admeasuring approximately 2000 sq. yds. belonged to  Prakash Chimanlal  Parikh  and Pankaj Chimanlal  Parikh  (respondent Nos.1  and  2) and that M/s JMMC Pvt.  Ltd.  (the  applicant company)  were not the owners.  The High Court has sent  the report  dated 13-14-16-17.8.1991. The applicant company  has filed  objections on 29.10.1991 to the findings recorded  by the  High Court and the petitioners have filed a counter  on 23.11.1991 to the objections filed by the applicant company. Mr.  Jethmalani,  learned senior counsel on  behalf  of  the applicant company wanted to challenge the findings  recorded by  the High Court on the question of title of the  disputed property.  Mr. Chidambaram, learned senior counsel appearing on behalf of the petitioners raised a preliminary  objection that  the  present interlocutory application  filed  by  the applicant  company is not maintainable and the order  passed by this Court on 2.4.1990 was passed under a  misconception. It  was submitted that in spite of the findings recorded  by the  High  Court  in  their  favour,  he  was  raising   the preliminary  objection  that the  interlocutory  application filed  by the applicant company itself was not  maintainable and as such the order passed by this Court dated 2.4.1990 as well  as  the entire proceedings taken in pursuance  to  the said order and the findings recorded by the High Court  were without  jurisdiction.   It was further contended  that  the Special Leave Petition No.4925 of 1977 had itself been  dis- missed  by order dated 13.12.1977 and no  application  could have been filed under any provision of law by the  applicant

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company in the said Special Leave Petition after a lapse  of more  than  12  years.  In view  of  the  above  preliminary objection  raised  on behalf of the petitioners,  we  called upon  Mr. Jethmalani to make submissions on the  preliminary objection.  After hearing learned counsel for the parties at length  on the preliminary objection, we consider it  neces- sary  to decide the preliminary objection first and  we  are disposing of the same by this order. It  was  vehemently  contended by  Mr.  Jethmalani,  learned senior counsel that such application was maintainable  under Articles 136 and 142 of the Constitution.  It was  contended that in this application apart from 621 the  prayer  for impleadment in the Special  Leave  Petition No.4925  of  1977 a prayer was made that the  fraud  alleged against  the  petitioners should also be enquired.   It  was submitted  that this Hon’ble Court while passing  the  order dated  2.4.1990  had allowed the prayer for  impleadment  by implication and the second prayer expressly when this  Court had  framed  the issue of title and had  directed  the  High Court  to send its findings after giving an  opportunity  to the  parties  to  file  affidavits,  discovery  and  leading evidence  etc.   It was also submitted that apart  from  the above  reliefs it was also prayed that the order dated  11th December,  1978 regarding the satisfaction of the decree  be also  set aside.  It was submitted that this  Hon’ble  Court has  appellate powers from every decision of every Court  or Tribunal and Art.142 of the Constitution gives power to this Hon’ble  Court to do justice in any cause or  matter  raised even  in  a  Special Leave  Petition  already  dismissed  or disposed  of  Reliance  is placed on the  decision  of  this Hon’ble  Court  in Union Carbide Corporation Ltd  Others  v. Union  of  India  and Others, [1991]4 S.C.C.  584.   It  was contended  that the application is covered by Section 47  of the  Code  of Civil Procedure or within  the  principles  of justice  underlying Section 47 C.P.C. read with  Art.142  of the Constitution. It  was  also contended that by order  dated  2.4.1990  this Hon’ble   Court  had  granted  two  prayers  made  in   the, application.  Firstly, this Hon’ble Court had impleaded  the applicant company and had recorded its right of being  heard in  the matter and secondly, had decided to make an  enquiry into  the  fraud complained of by the applicant  company  by directing the High Court to make a report on the question of tide..-The  order  dated  2.4.1990  had  been  passed  after hearing  the parties.  It would cause an irreparable  injury to the applicant company in case the order dated 2.4.1990 is recalled.   The  applicant company has already been  put  to enormous  costs and expenses in conducting  the  proceedings before the High Court and a long and valuable judicial  time has also been spent.  It was submitted that the parties have already  suffered  a protracted hearing and it  would  be  a travesty  of  justice if the parties would now  be  told  to start their legal remedy from the lowest court of  competent jurisdiction.   It  would bring justice into  disrepute  and would prove the dictum ’justice delayed is justice  denied’. The order dated 2.4.1990 is neither per-incuriam not without jurisdiction and the same being passed by this Hon’ble Court itself  after  full  application of  mind  and  hearing  the parties ought to be sustained. It was further contended that even after the passing of  the order 622      dated  2.4.1990 by this Hon’ble Court, the  petitioners had  raised the plea of correctness of the said order  dated

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2.4.1990 before the High Court.  The High Court rejected the said  contention  by a specific order dated  21.8.1990.  The High Court further granted an opportunity to the petitioners to  seek  a  review of the order dated  2.4.1990  from  this Hon’ble Court, but the petitioners did not avail of the said opportunity  and continued with the proceedings  before  the High  Court.   Under  these circumstances  the  order  dated 2.4.1990  having  become final cannot be  impeached  now  in these very proceedings.  It was submitted that the principle of  res judicata applies also as between two stages  in  the same  litigation and any question having been decided at  an earlier  stage in one way or the other cannot be allowed  to be  reagitated by the parties at a subsequent stage  of  the same proceedings.  Once a matter is decided it is  certainly final  as  regards  that Court is  concerned.   Reliance  in support  of  the above contention is  placed  on  Satyadhyan Ghosal & Ors. v. Sm.  Deorajin Debi & Anr., [1960] 3  S.C.R. 590 and Y.B. Patil & Ors. v. Y.L. Patil [1977] 1 S.C.R. 320. It was further contended that the application in question is also  maintainable  under Section 47 of the  Code  of  Civil Procedure.  It is submitted that a dispute between a  decree holder  and a person claiming adverse to the  decree  holder which  affects the judgment debtor falls within the  purview of  Section  47  of  the Code of  Civil  Procedure.   It  is contended  that  the  consent decree  dated  31.10.1961  was modified and merged in the order of this Hon’ble Court dated 13.12.1977. By the said order dated 13.12.1977    the   time for  execution  of  the consent  decree  was  extended  upto 1.1.1980. By  another  order dated 11.12.1978  this  Hon’ble Court  recorded satisfaction of the executable  order  dated 13.12.1977  by  discharging the undertakings  given  by  the petitioners and respondent No.3. It has thus been  contended that the applicant company being the true and absolute owner of the disputed property was entitled to the benefit of  the modified   decree   dated  13.12.1977.  In   view   of   the satisfaction  recorded by this Hon’ble Court by order  dated 11.12.1978,   the   applicant  company  was   justified   in submitting  the present application under Section 47 of  the Code  of  Civil  Procedure for setting aside  the  order  of satisfaction  of  the decree for eviction recorded  by  this Court.   The respondent Nos.1 and 2 destroyed such right  of the applicant company by entering into a transaction  acting as  proprietors  and committed a fraud by seeking  an  order dated  11.12.1978.  Hence, this Hon’ble Court alone  can  go into the question of such fraud. 623 it was also contended that the petitioners are also bound by the  principle of acquiescence, waiver and estoppel in  view of  the fact that they did not file any  review  application against  the order dated 2.4.1990, instead  participated  in the  proceedings before the High Court for a long period  of 78  days.  It was also submitted that no prejudice has  been occasioned to the petitioners on account of the order  dated 2.4.1990  as the finding on the question of title  has  been recorded by the High Court in favour of the petitioners  and it is the applicant company who wants to assail the same and get the question of title to be decided finally by the  Apex Court to shorten the litigation. On  the  other  hand it was submitted  by  Mr.  Chidambaram, learned senior counsel for the parties that the order  dated 2.4.1990 being merely an interim order, the same can  always be  varied or modified by this Court. at any later stage  of the   proceedings.   The  prayer  in  the  application   for impleadment  filed by the applicant company has  itself  not been  granted  so  far and by the order  dated  2.4.1990  no

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question  has been decided nor has any right been  conferred thereby  on the applicant company.  This Hon’ble  Court  had passed the order dated 2.4.1990 under a clear  misconception of both facts as well as law and as such the same can always be  recalled at a subsequent stage in the proceedings.   The application  is not maintainable under any provision of  law including  Section  47  C.P.C.  The  applicant  company  was neither a party to the suit in which the decree for eviction was  passed nor has it come forward as a  representative  of any  party to the suit much less the representative  of  the decree  holder.  It has been contended that  the  respondent Nos.1 and 2 had filed an application under Order 21 rule  16 and Order 21 rule 22 C.P.C. for being substituted as  decree holders and the executing court had allowed the applications in  their  favour and as such they alone were  competent  to execute the decree. It  was  also  argued  on behalf  of  the  petitioners  that judgments  which  have  the  force of a  decree  are  to  be distinguished  from other interlocutory orders which  are  a step towards the decision of the dispute between the parties by  way  of  a decree or a final order.  Thus  it  has  been contended  that the nature of the order dated  2.4.1990  was merely a step towards the decision of the application  filed by the applicant company which itself is of an interlocutory nature.   It  was  also argued that  the  lease  granted  by respondent  Nos.1 and 2 in favour of the petitioners  w.e.f. 25.6.1978  was  not  the subject matter of  the  prayers  in C.M.P. No.18403 of 1978 nor the 624 subject  matter of the order made by this Hon’ble  Court  on 11.12.1978.  The  fresh  lease  granted  in  favour  of  the petitioners  has  never  been  the  subject  matter  of  any proceedings  in  any court of law,  including  this  Hon’ble Court.   Thus  it is not open to the  applicant  company  by moving  the above interlocutory application No.1 of 1990  to question  in  any  matter  the  fresh  lease  granted  w.e.f 25.6.1978 or to allege that the said lease is fraudulent  or is vitiated in any other manner.  Even if for arguments sake the applicant company now wishes to challenge the  aforesaid lease  granted  as far back as on 25.6.1978,  the  applicant company  is  bound  to institute  separate  and  substantive proceedings challenging the said lease. It has also been argued on behalf of the petitioners that in R.A.D.718  of 1974 the applicant company being  a  defendant had filed a written statement in November, 1986 in which  it had  referred and questioned the grant of fresh lease  dated 25.6.1978  by  respondent Nos.1 and 2. Thus the   stand  now taken  by the applicant company that it came to  know  about the aforesaid lease only after its advocate took  inspection of  papers  on 20th January, 1990 is totally false  and  the applicant company having not come with clean hands and  also after a long delay the application is liable to be dismissed on these grounds alone. We have given our thoughtful consideration to the  arguments advanced  on behalf of the parties and have  carefully  gone through  the  record as well as the  written  arguments.  As already  mentioned  above the respondent Nos.1  and  2  were substituted as decree holders by an order of the High Court dated  10.12.1973.  The  petitioners  having  purchased  the business from Devidayal Rolling Mills, (the respondent No.3) had filed  a declaratory suit in January, 1974 in the  Small Causes  Court at Bombay. In the said suit the  interlocutory application  restraining  the respondent Nos.1  and  2  from executing  the  decree  for  eviction  was  dismissed.   The revision filed by the petitioners was also dismissed by the

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High  Court and against that order the petitioners had  come before this Court by filing the above Special Leave Petition No.4925  of 1977. The said Special Leave Petition  was  also dismissed  on 13.12.1977 and the time was granted to  vacate the  property  in dispute before the 1st January,  1980.  In pursuance  to the order dated 13.12.1977  some  undertakings were given by the petitioners as well as respondent No.3  on 15.12.1977  and  thereafter the petitioners  and  respondent No.3  handed over the possession of the property in  dispute to 625 respondent  Nos.1 and 2 on 25.6.1978 and on the same  day  a fresh agreement of lease was granted by respondent Nos.1 and 2  in favour of the petitioners.  We are thus totally  at  a loss  to understand as to how any question of its  title  as sought  to  be  raised  by  the  applicant  company  against respondent Nos.1 and 2 or any question of fraud, if any,  in granting  a fresh lease dated 25.6.1978 by respondent  Nos.1 and 2 could at all be brought up before this Court  straight away.   These  questions  now sought to  be  raised  by  the applicant company in the present application have nothing to do  with  the controversy raised in the main  Special  Leave Petition itself which also came to be dismissed long back on 13.12.1977.  In  our  view such  controversy  regarding  the alleged  applicant  company’s title to the property  or  the question  of  alleged fraud in respect of creating  a  fresh tenancy  dated 25.6.1978 in respect of that property had  no relevance  even  remotely with the question  raised  in  the Special  Leave Petition.  Such questions of title  or  fraud could  neither be gone into in a Special Leave  Petition  in exercise  of its jurisdiction under Art. 136 or 142  of  the Constitution  nor could the same be raised under Section  47 of  the Code of Civil Procedure in the disposed  of  Special Leave Petition nor by way of any interlocutory  application. The order dated 2.4.1990 appears to have been passed under a clear  misconception that it will aid the final decision  on the  application.  This Court while passing the order  dated 2.4.1990 did not decide any controversy nor did it grant the application for impleadment filed by the applicant  company. There was no proceeding pending at all before this Court  in respect  of  the above Special Leave Petition in  which  the present  application could have been filed after a lapse  of 12  years and it was an apparent and obvious mistake on  the part  of  this Court in entertaining such  application.   We cannot accept the submission made on behalf of the applicant company  that the order dated 2.4.1990 is final and  binding so as to compel us to decide the question of title. The   Special  Leave  Petition  itself  was  filed  by   the petitioners who were claiming as tenants in the property  in dispute  against the order of the High Court  affirming  the order  of the Small Causes Court refusing to  grant  interim injuction against the execution of the decree for  eviction. Thus  the controversy, if any, raised, in the  main  special Leave Petition itself had nothing to do with the question of any dispute of title between the respondent Nos.1 and 2, and the applicant company. 526 It  may be noted that according to the  applicant  company’s own  case they had made an agreement of purchasing the  100% shares  of the private limited company of  respondent  Nos.1 and  2  on 31.7.1979 and thereafter Jugal Kishore  Gupta  on behalf of the applicant company took over the entire  assets on  23.4.1980. Thus the applicant company cannot be said  to have anything to do with the two orders passed by this Court on  13.12.1977  and on 11.12.1978 nor  could  the  applicant

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company be regarded as one in any way adversely affected  by the agreement dated 25.6.1978 of new tenancy as till then it had  not  taken  any steps of purchasing  the  said  shares. There was no scope or even any semblance of any  controversy now sought to be raised by the applicant company which could have  been  raised  or decided in  the  main  Special  Leave Petition itself.  That apart a Bench of three Judges of this Court on 13.12.1977 had dismissed the Special Leave Petition and  so  far as the order dated 11.12.1978 is  concerned  it neither  decided  any controversy nor  changed  its  earlier order  of dismissal of the Special Leave Petition.   We  are clearly  of  the view that  this  interlocutory  application filed by the applicant company on 23.1.1990 in the dismissed Special Leave Petition as back as on 13.12.1977, was totally misconceived and there was no provision under which the same could have been entertained by this Court. It  is  no  doubt true that on account of  the  order  dated 2.4.1990 both the parties have been put to an enormous  cost but  this  cannot  be a  justification  for  entertaining  a controversy  which did not arise even remotely in  the  main Special  Leave Petition and which could only be  decided  by way of regular substantive proceedings. in the lowest  court of competent jurisdiction.  This Court cannot entertain  and decide  the  question  of tide in respect  of  an  immovable property raised for the first time before this Court by  way of  an  interim  application in a  dismissed  Special  Leave Petition.  There is no question of any acquiescence,  waiver or estoppel against a party where the error is committed  by the  Court  itself.  This Court is under a bounden  duty  to correct  its  own  mistake.  So far as  the  case  of  Union Carbide Corporation v. Union of India, (supra) is  concerned the same has no relevance and can be of no assistance at all to  the applicant company in the facts and circumstances  of the present case. The principle laid down in Satyadhyan’s case (supra) and YB. Patil & Ors. (supra) is to the effect that the principle  of res-judicata can be 627 invoked not only in separate subsequent proceedings but they can  also  get  attracted in subsequent stage  of  the  same proceedings.   There cannot be any difference of opinion  in the said view.  However, this question would  depend on  the facts  and circumstances of each case and the nature of  the order  passed  at an earlier stage of the  proceedings.   In Arjun Singh v. Mohindra Kumar & Ors., [1964] 5 S.C.R. 947 it was observed as under:               "Where  the  principles  of  res-judicata   is               invoked in the case of the different stages of               proceedings in the same suit the nature of the               proceedings,  the scope of the  enquiry  which               the  adjectival law provides for the  decision               being   reached  as  well  as   the   specific               provision   made  on  matters  touching   such               decisions  are  some  of  the  factors  to  be               considered before the principle is held to  be               applicable". So  far  as  the question of rendering justice  in  a  civil litigation  is  concerned, it can only be  known  after  the final   culmination  of  such  litigation  and   the   party succeeding  can be adequately compensated by way  of  costs. It  has  been rightly said that "cost is a  panacea  in  law which  heals  every  sore in litigations.   In  the  present system  of adversarial civil litigation between the  parties it  may turn out to be costly as well as time consuming,  if either of the parties decide to bring all or any controversy

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for  decision upto the Apex Court.  In our  considered  view the  question of title to an immovable property or fraud  in any transaction relating to it cannot be entertained by this Court in an interlocutory application filed by a third party in  a  Special Leave Petition dismissed as long  ago  as  12 years  discarding all procedural requirements.  We are  thus clearly  of the view that the order dated 2.4.1990  did  not decide any issue finally nor can it be considered as binding or operative as res-judicata or otherwise. It  is  true that the High Court has recorded a  finding  in favour of the petitioners and against the applicant  company and as such the applicant company is prejudiced if the  said finding remains in tact.  However, in view of the fact  that we are upholding the preliminary objection, it is  necessary in the interest of justice to declare the entire proceedings in  the  High Court including the findings recorded  on  the question  of title as non-est and not binding on any of  the parties concerned.  We order accordingly.  Although we  have refrained from making any observations on the merits of  the issues 628 raised in the I.A. regarding the questions of alleged  title and alleged fraud we make it clear that this Judgment or any observations  made therein will not in any manner  prejudice the rights of any of the parties with regard to the title of the  property in dispute or any question of fraud sought  to be raised by the applicant company in an appropriate forum. Subject  to the above, we dismiss Interlocutory  Application No.1 of 1990 with no order as to costs. R.P. Application dismissed. 629