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Dev Krishna and anr. Vs. Dhani Ram Saligram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Review No. 15 of 1954
Judge
Reported inAIR1959MP217
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantDev Krishna and anr.
RespondentDhani Ram Saligram
Appellant AdvocateHarihar Niwas Dwivedi, Adv.
Respondent AdvocateJagannath Prashad Shrivastava, Adv.
DispositionApplication dismissed
Excerpt:
- - long long ago the decree-holder obtained a money decree against the non-applicant which he put into execution well after the statutory period of limitation. the decree-holder having taken years failed to produce it, the executing court dismissed the application as time-barred. but even after the remand the decree-holder failed to prove it. case law has been cited, but it is unnecessary to summarise it because the principles applicable to a review are well settled and have been accepted by the high courts with unanimity......as a 'notification', a particular order of the durbar of the erstwhile gwalior state on which the decree-holder-applicant relied as the means of saving limitation? certainly the question is not whether that notification was one properly so-called, or something more namely a statute which need not be proved, but should be judicially noticed, nor is it the question whether the single bench judgment is wrong in this regard.2. the facts arc simple. long long ago the decree-holder obtained a money decree against the non-applicant which he put into execution well after the statutory period of limitation. when this was pointed out by the non-applicant judgment-debtor the decree-holder argued that during this interval the durbar had made and notified an order giving as it were a moratorium......
Judgment:

H.B. Krishnan, J.

1. In this application for review of the judgment of the Single Judge in Civil Second Appeal No.129 of 1952, the question for decision is this: Has that Court committed a mistake apparent on the face of the record when it has described as a 'notification', a particular order of the Durbar of the erstwhile Gwalior State on which the decree-holder-applicant relied as the means of saving limitation? Certainly the question is not whether that notification was one properly so-called, or something more namely a statute which need not be proved, but should be judicially noticed, nor is it the question whether the Single Bench judgment is wrong in this regard.

2. The facts arc simple. Long long ago the decree-holder obtained a money decree against the non-applicant which he put into execution well after the statutory period of limitation. When this was pointed out by the non-applicant judgment-debtor the decree-holder argued that during this interval the Durbar had made and notified an order giving as it were a moratorium. After that order or notification spent itself he filed the application for execution, and was therefore, entitled to get the period excluded.

It was, therefore a simple matter calling for the production of a copy of the said notification. The decree-holder having taken years failed to produce it, the executing court dismissed the application as time-barred. The decree-holder went up in appeal and the first appellate court remanded the execution case to enable the decree-holder to prove the notification on which he was apparently reiving.

But even after the remand the decree-holder failed to prove it. The case was again dismissed and again taken up in first appeal. On this occasion in the first appellate Court a copy of the notification seems to have been produced, and the court observed that it was taking judicial notice; then it restored the execution case as being in time.

3. Thereupon the judgment-debtor came up in second appeal, and the single Bench held, firstly, that the first appellate court had really taken further evidence and not judicial notice, as in fact, according to a Full Bench ruling of the Madhya Bharat High Court no judicial notice could be taken of a notification. Secondly, it found that in the circumstances of the case there was altogether no justification for further evidence in the first appellate court; and thirdly, considering the case without this piece of further evidence it ordered that the execution case should be dismissed as time-barred.

4. The decree-holder thereupon came with an application for review, though at that time there was provision for a special appeal on a certificate by the Single Bench on substantially the same lines as the Letters Patent Appeal. However, he did not ask for a certificate and naturally did not file a special appeal. He held that review was justified because in describing this 'notification', as a notification properly so called the Single Bench was committing an error apparent on the face of the record.

The reply of the non-applicant is that this is not an error apparent on the face of the record and it is outside the scope of the review to consider whether or not the decision itself is a correct one. Case law has been cited, but it is unnecessary to summarise it because the principles applicable to a review are well settled and have been accepted by the High Courts with unanimity. A review does not lie even if the decision of the Single Bench is erroneous, if that Bench is aware of what it was doing.

A court has jurisdiction to decide wrongly. Secondly, if a point is arguable and has not been argued by the parties and the court has taken a view in agreement with the actual wording, no review lies simply because the actual wording may not be quite correct or the appearances have to be qualified by explanation or some other evidence. Thirdly, a mistake to be apparent, should be one which has only to be pointed out to be corrected immediately, without any argument. If the court has entered into a discussion of the pros and cons and has justified one of the two alternative views then certainly the mistake, if any, is not apparent or patent.

5. For our purposes it is only necessary to consider these propositions summarising the more important of the principles governing review.

6. In the present case, the applicant contends that the District Judge could take judicial notice of the contents of this notification because it was really not a notification as understood in the Full Bench judgment, but really a statute. Actually that notification is one containing what was called the Durbar order. The applicant has argued that the Durbar order was itself a statute and, therefore, it was law in force and as such fit for judicial notice.

It is unnecessary for our present purposes toconsider whether or not the contents of the notification are equivalent to statute or form merely an executive order. It was certainly open to the applicant to argue before the Single Bench of the court that the nominal description as a notification and the Full Bench judgment notwithstanding, the case was one of judicial notice, and not further evidence, because the contents were really equivalent to a statute and not a mere notification. The applicant does not seem to have done so.

7. Again that particular instrument has been described rightly or wrongly as a notification. The Single Bench has also called it a notification which is, of course, the actual name applied to it by its maker; from it following the Full Bench ruling held that it could not be judicially noticed. Whether or not one agrees with this view I do not see how it is a patent error. It may be an error of argument, understanding or judgment, but that as another matter. Again, the judgment does not show that there was any argument on the question what the contents of this notification really amounted to. But the Full Bench ruling does seem to have been thought of. It was open to the applicant to point out that it was not applicable to the present case. He does not seem to nave done it.

8. Finally, one has only to read the judgment to note that this is not a mistake which on the mere pointing out the Single Bench would have corrected. On the contrary, it would have required some argument to convince anybody that its name notwithstanding, it was not a notification as understood by the Full Bench. Once we are in this position it cannot be an apparent or patent mistake.

9. The real grievance of the applicant was that he was dissatisfied with the finding on the Single Bench that was not an apparent mistake, but one given after consideration of the pros and cons of the case. Therefore, it was not one calling for review though it might in certain circumstances have called for a special or Letters Patent Appeal. The scope of a review is altogether different from that of such an appeal.

10. The result is that the application in review is dismissed. Costs to the non-applicant according to rules.

A.H. Khan, J.

11. I agree.


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