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PETITIONER: PARSION DEVI & ORS.

       Vs.

RESPONDENT: SUMITRI DEVI & ORS.

DATE OF JUDGMENT:       14/10/1997

BENCH: A.S. ANAND, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal by special leave calls in question an order passed by a single judge (G.D. Sharma, J.) of the High Court of Jammu  & Kashmir  on 6.3.1997  in exercise  of the review jurisdiction under  order 47  Rule 1  CPC. The learned Judge ’upset’ the  findings recorded  on April  25, 1989  in Civil Revision No. 87 of 1987 by another single judge (K.K. Gupta, J.) of that Court.      Shorn of  details, brief  facts necessary  for disposal for this  appeal are that on November 28, 1977 a suit, filed by the  appellants, was decreed and an injunction was issued to the  defendant-respondents  to  close  down  the  passage carved out  by opening  a door from the wall and further the defendants were  restrained  from  using  that  passage.  On August 7,  1986 an  application for  execution of the decree was filed  in the  Executing Court  on the  ground that  the injunction were  being violated.  The judgement debtor filed objections  to   the  Execution  Application  and  raised  a preliminary objection  to  the  effect  that  the  Execution Application was  barred by  time. The  Executing Court  vide order dated May 6, 1987 upheld the preliminary objection and held the  Execution Application  to the  barred by time. The matter was taken up in revision to the High Court. On 25.4 .1989, the  Civil Revision  Petition against  the  order  of Execution Court  was allowed.  Gupta, J.  allowing the civil revision petition  held that the case was covered by Article 181 of the Jammu & Kashmir Limitation Act and the opinion of the Executing  Court that  it was  covered by Article 182 of the J  & K  Limitation Act was by time. It was held that the petition was  not barred  Executing Court  for  decision  on merits. A  review petition came to for decision on merits. A review petition came to be filed by the judgment debtors and on 6.3.1997  the review  petition was  allowed by sharma. J. and the  order dated 25.4.1989 was set at naught and that of the Executing Court dated 6.5.1987 restored.      Mr. Ranjit  Kumar, learned  counsel appearing  for  the appellant submitted  that the  impugned order is vitiated as it transgresses  the powers of review available to the Court under Order  47 Rule  1 CPC.  He submitted  that the  review petition had  been treated  as if  it was an appeal. He also

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referred to  the grounds of the review application and urged that on  none of  those grounds  was the review of the order dated 25.4.1989 justified.      Mr. M.L. Bhat, learned senior counsel appearing for the respondents, on  the other  hand submitted  that the  Review Court had  only set right the mistake committed by Gupta, J. by correct  interpretation of  the decree and the Act to the facts of  the case and that exercise could not rightly with. He asserted  that sharma, J. had rightly set aside the order of Gupta,  J. dated  25.4.1989 and  upheld the  order of the Executing Court dated 6.5.1987.      We have  given  our  thoughtful  consideration  to  the respective submissions raised at the Bar.      A perusal  of the  application filed  by  the  judgment debtors seeking  review of  the order  dated 25.4.1989 shows that  none  of  the  grounds  stated  therein  can  strictly speaking be said to fall within the ambit and scope of Order 47 Rule  1 CPC. The review petition in effect challenged the correctness of  the order  of Gupta,  J. on  the question of limitation without  pointing out  any "error apparent on the face of  the record" which could have been reviewed. Sharma, J. appears  to have  ignored the  limits of  the exercise of jurisdiction under  Order 47  Rule 1  CPC while  passing the impugned order  and reversing  the order  of  Gupta,  J.  on merits.      It is  well settled  that review proceedings have to be strictly confined  to the ambit and scope of Order 47 Rule 1 CPC. In  Thungabhadra Industries  Ltd. Vs. The Government of Andhra Pradesh (1965 (5) SCR 174 at 186) this Court opined:      "What,   however,    we   are   not      concerned  with   is  whether   the      statement in the order of September      1959 that  the case did not involve      any substantial  question of law is      an "error  apparent on  the face of      the record".  The fact  that on the      earlier occation that Court held on      an identical  state of facts that a      substantial question  of law  arose      would not per se be conclusive, for      the earlier  order itself  might be      erroneous. Similarly,  even if  the      statement was  wrong, it  would not      follow  that   it  was   an  "error      apparent  on   the  face   of   the      record", for  there is  a  distinct      which is  real, though it might not      always  be  capable  of  exposition      between a  mere erroneous  decision      and  a   decision  which  could  be      characterised as vitiated by "error      apparent."  A review is by no means      an appeal  in disguise  whereby  an      errneous   decision    is   reheard      corrected. but lies only for patent      error."             (Emphasis ours)      Again, in  Smt. Meera  Bhanjia Vs.  Smt. Nirmala Kumari Choudhury (1995  (1) SCC  170) while quoting with approval a passage from  Abhiram Taleshwar  Sharma Vs.  Abhiram  Pishak Sharma & Ors. (1979 (4) SCC 389), this Court once again held that review proceedings are not by way of an appeal and have to strictly confined to the scope and ambit of Order 47 Rule 1 CPC.      Under Order  47 Rule  1 CPC  a judgment  may be open to

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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 review under Order  47 Rule  1 CPC. In exercise of the jurisdiction under Order  47 Rule  1 CPC  it is  not permissible  for  an erroneous decision  to be  "reheard and corrected". A review petition, it  must be  remembered has  limited  purpose  and cannot be allowed to be "an appeal in disguise."      Considered in  the light  of this  settled position  we fine that  Sharma, J.  clearly over-stepped the jurisdiction vested  in  the  court  under  Order  47  Rule  1  CPC.  The observation of  Sharma, J.  that "accordingly", the order in question is  reviewed and  it is  held that  the  decree  in question is  reviewed and  it is  held that  the  decree  in question was  of composite nature wherein both mandatory and prohibitory injunction  were provided"  and as such the case was covered  by Article  the scope  of Order  47 Rule 1 CPC. There is  a clear  distinction between an erroneous decision and an  error apparent  on the face of the record. While the first can  be corrected  by the higher forum, the later only can be  corrected by  exercise of  the review  jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil  Revision dated 25.4.1989 as an erroneous decision, though without  saying so  in so  many words.  Indeed, while passing the  impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not  of such  a nature, "Which had to be detected by a long drawn  process of  reasons" and  proceeded  to  set  at naught the  order of  Gupta, J.  However, mechanical  use of statutorily sanctified  phrases cannot detract from the real import of  the  order  passed  in  exercise  of  the  review jurisdiction. Recourse  to review  petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors  could have  approached  the  higher  forum through appropriate  proceedings, to  assail  the  order  of Gupta, J.  and get  it set aside but it was not open to them to seek  a "review of the order of petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J.  cannot be  sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997.      As a  consequence of  the setting aside of the impugned order,  the   remand  order   made  by   Gupta,   J.   would automatically stand  revived but  that in  our opinion  also does not solve the problem.      We find  that neither the executing court nor Gupta, J. while deciding the Civil Revision petition have recorded any finding as  to the  data or  the time  when the  decree  was allegedly  breached.  That  was  an  essential  fact  to  be determined before it could be considered whether Article 181 or Article  182 of  the Limitation  Act would  apply to  the facts and  circumstances of the case. Therefore, with a view to do  complete justice  between  the  parties,  it  appears appropriate to  us to direct that the Executing Court shall, while deciding  the Executing  Application  on  merits  also consider this  aspect and  return a  finding as  to when the cause of  action  accrued  to  the  decree  holder  and  the consider the  question as to which Article of the Limitation Act applies  to the  facts of  the case, uninfluenced by any observation made by Gupta, J. or Sharma, J. in their orders. This question  would be  considered, not  as  a  preliminary objection, but  alongwith all  other issues  on merits.  The Executing Court  shall dispose  of the execution application on merits  in accordance  with law expeditiously. The appeal

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is accordingly allowed but with no order as to costs.