PARSION DEVI AND ORS.versusSUMITRI DEVI AND ORS.

A                          PARSION DEVI AND ORS.
                                     v.
                           SUMITRI DEY! AND ORS.

                               OCTOBER 14, 1997

B             [DR. A.S. ANAND ANDS. RAJENDRA BABU, JJ.]


          Code of Civil Procedure, 1908: Order 47 Rule I.

          Review-Power of Court-Ground of review-Appellant's suit for
C injunction decreed-Execution application-Objection by judgment debtor
    that application was time barred upheld by Executing Court-Revision
    against the order of Executing Court allowed holding that application was
    not time barred-Review by judgment debtor-Challenge to the correctness
    of order on the question of limitation without pointing out any "error
D   apparent on the face of record"-Review petition allowed reversing the
    impugned order on merit-Appeal before Supreme Court-Held, review
    proceedings have to be strictly confined to the ambit and scope of Order 47
    Ride 1-There is a clear distinction between an erroneous decision and an
    error apparent on the face of the record-While the farmer can be corrected
    by the higher forum, the latter only can be corrected by exercise of the
E   review jurisdiction-Jn review it is not permissible for an erroneous decision
    to be "reheard and corrected"-A review petition has a limited purpose and
    cannot be allowed to be ''an appeal in disguise' '-Recourse to review petition
    in the facts and circumstances of the case was not permissible.
                     .
          Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh,
F   (1965) 5 SCR 174; Smt. Meera Bhanjia v. Smt. Nirmala Kumari Choudhary,
    (1995) l SCC 170 and Abhiram Te/eshwar Sharma v. Abhiram Pishak Sharma
    & Ors., (1979) 4 SCC 389, relied on.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5245 of 1997.

G        From the Judgment and Order dated 6.3 .97 of the Jammu & Kashmir
    High Court in C.R.P. No. 5of1989.

          Ranjit Kumar and Ms. Anu Mohla for the Appellants.

          M.L. Bhat and Ms. Pumima Bhat Kak for the Respondents.
H                                   470
                     PARISON DEVI v. SUMITRI DEVI                          471

      The following Order of the Court was delivered :                            A
      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.            B

       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     C
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 injunctions were being violated. The judgment 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             D
Execution Application to be 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 Executing 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         E
covered by Article 182 of the J & K Limitation Act was erroneous. It was held
that the petition was not barred by time. The Execution Application was
remanded to the Executing Court 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.                          F

      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 I CPC: He submitted that the
review petition had been treated as if it was an appeal. He also referred to      G
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    H
    472                      SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A   application·ofthe relevant article of the Limitation Act to the facts of the case
    and that exercise could not be faulted 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 considerations to the respective
B   submissions raised at the Bar.

           A perusal of the application filed by the judgment debtors seeking
    review of the order dated 25.4. I 989 shows that none of the grounds stated
    therein can strictly speaking be said to fall within the ambit and scope of
C   Order 47 Rule I 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.
D
           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. v. The Government ofAndhra Pradesh, [I 965] 5 SCR 174 at 186 this Court
    opined:

E           "What, however, we are not concerned with is whether the statement
            in the order of September I 959 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 occasion the Court held on an ·
            identical state of facts that a s.ubstantial question of law arose would
            not per se be conclusive, for the earlier order itself might be erroneous.
F           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
            distinction 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
G           no means an appeal in disguise whereby an erroneous decision is
            reheard and corrected, but lies only for patent error. "

                                                                   (Emphasis ours)

          Again, in Smt. Meera Bhanjia v. Smt. Nirmala Kumari Choudhury,
H   [ 1995] I sec 170 while quoting with approval a passage from Abhiram
                     PARISON DEVI v. SUMITRI DEVI                           473
Taleshwar Sharma v. Abhiram Pishak Sharma & Ors., [1979] 4 SCC 389, this            A
Court once again held that review proceedings are not by way of an appeal
and have to be 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 review inter alia
if there is a mistake or an error apparent on the face of the record. An error      B
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 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47 Rule 1 CPC it is not perinissible for
an erroneous decision to be "reheard and corrected". A review petition, it          C
must be remembered has a limited purpose and cannot be allowed to be "an
appeal in disguise".

       Considered in the light of this settled position we find that Sharma, J.
clearly over-stepped the jurisdiction vested in the court under Order 47 Rule
 l CPC. The observations of Sharma, J. that "accordingly, the order in question     D
is reviewed and it is held that the decree in question was of composite nature
wherein both mandatory and prohibitory injunctions were provided" and as
such the case was covered by Article 182 and not Article 181, cannot be said
to fall within the scope of Order 4 7 Rule I CPC. There is a clear distinction
between an erroneous decision and an error apparent on the face of the              E
record While the first can be corrected by the higher forum, the latter 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 was not of           F
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               G
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 Gupta, J. on the grounds detailed in the review petition. In this view
of the matter, we are of the opinion that the impugned order of Sharma, J.
cannot be sustained and we accordingly accept this appeal and set aside the         H


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    474                      SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A   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.

B          We find that neither the executing court nor Gupta, J. while deciding the
    Civil Revision Petition have recorded any finding as to the date 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 I 82
    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      '
C   appropriate to us to direct that the Executing Court shall, while deciding the
    Execution Application on merits also consider this aspect and return a finding
    as to when the cause of action accrued to the decree holder and then 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,
D   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 is accordingly allowed but with no order as to
    costs.

E   T.NA.                                                         Appeal allowed.




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