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Venkataswami Reddiar Vs. Thirukamu Reddiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ524
AppellantVenkataswami Reddiar
RespondentThirukamu Reddiar and ors.
Cases ReferredMoran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius
Excerpt:
.....be reviewed under order 47, rule 1. but that decision also would not apply to the case now before me. 13. it appears to me to be well-settled that a review cannot be asked for merely because by reason of a subsequent decision which is binding authority, the earlier decision interpreting the provision of any statute is found to be wrong......the view that a subsequent binding authority taking a different view of the law (in that case the subsequent decision of a division bench of the court in. kodhukutti v. abraham tharakan (1968) k.l.t. 23, taking a view of the law different from what he had taken in the decision sought to be reviewed) was a good ground for review, for it seemed to the learned judge that it would be the discovery of a new and important matter and in any case, an error apparent on the face of the record, within the meaning of order 47, rule 1 of the code. p.t. raman nayar, j., further observed as follows:it seems to me to make no difference whether the binding authority demonstrating the error was a decision rendered before, or one rendered after the, decision in which the error occurred, for, a judicial.....
Judgment:
ORDER

C.J.R. Paul, J.

1. This is a petition for reviewing the order passed by me on 26th February, 1975 in A.A.A.O. No. 70 of 1974.

2. The question which arose for determination in that appeal was whether Section 23-C of the Tamil Nadu Agriculturists' Relief Act (VIII of 1973) is applicable to a case in which the property is sold after the coming into force of the Act. The learned District Munsif held that the judgment debtor was entitled to invoke the aid of Section 23-C of the aforesaid Act, since the application invoking Section 23-C was filed within 90 days from the date on which the sale was confirmed. The sale was held on 19th February, 1973, and it was confirmed on 23rd March, 1973. The learned Subordinate Judge on appeal held that Section 23-C of the Act would be applicable only if the sale had been held before the Act came into force. I was of the view that Section 23-C would apply even in cases where the sales had taken place after the commencement of the Act. Subsequent to my order, a Full Bench of this Court in Dharmarajan v. Nagalinga Kandiyar : (1975)2MLJ34 has held that Section 23-C of the Tamil Nadu Agriculturists Relief Act cannot be invoked when the sale had taken place after the commencement of the Act. In view of that decision, a review of the order passed 'by me has been asked for.

3. The question is whether in view of the Full Bench decision of this Court, the earlier order passed by me which is contrary to that decision should be reviewed.

4. In Gannabathula Venkamma v. Gannabathuda Ranga Rao : AIR1922Mad227 it has been held that the ground for review under Order 47, Rule 1, C.P.C, must be something which existed at the date of the decree and the rule does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event. In that case the lower Court had decided a case following the decision of the High Court in a connected case. Subsequently however, the decision of the High Court in the connected case was reversed on appeal to the Privy Council. It was held that the reversal of the High Court's judgment is not a ground for a review of the lower Court's judgment.

5. The learned Counsel. for the petitioner, however, cited the decision in Thadikulangara Pylee's son Pathrose v. Ayyazhiveetil Lakshmiammds son Kuttan : AIR1969Ker186 . There P.T. Raman Nayar, J., (as he then was) observed that he was inclined to the view that a subsequent binding authority taking a different view of the law (in that case the subsequent decision of a Division Bench of the Court in. Kodhukutti v. Abraham Tharakan (1968) K.L.T. 23, taking a view of the law different from what he had taken in the decision sought to be reviewed) was a good ground for review, for it seemed to the learned Judge that it would be the discovery of a new and important matter and in any case, an error apparent on the face of the record, within the meaning of Order 47, Rule 1 of the Code. P.T. Raman Nayar, J., further observed as follows:

It seems to me to make no difference whether the binding authority demonstrating the error was a decision rendered before, or one rendered after the, decision in which the error occurred, for, a judicial decision only declares the law and does not make or change it. That, whether it be a fiction or not, is at any rate, the theory on which the Courts act. And where, as in this case, it is a question of construing a statute that is indisputably the truth.' For surely, the law is made by the statute and not by the judicial decision construing it, and the statute does not change with the changing judicial construction . There might be a change in the view taken by the Courts of what the law is or was, but no change in the law itself, and, when decisions taking a different view are overruled or dissented from, all that is done is to declare that these decisions wrongly declared the law. Therefore, such a binding judicial authority is analogous to a statute which changes the law with retrospective effect...And, with due respect to what has been said in Md. Azamat v. Shatranfi : AIR1963All54 , a subsequent decision authoritatively declaring the law differently seems to me to stand on a stronger footing than a subsequent legislation retrospectively amending the law.

This decision, however, been overruled by a Division Bench of the Kerala High Court in Board of Revenue v. Syed Akbar Sahib (1973) K.L.T. 497, wherein it was held that a subsequent binding decision would not constitute either the discovery of 'a new and important matter' or a 'mistake' or 'an error apparent on the face of the record'. It was observed that while the reversal or variance or the over-ruling of a judicial decision by a subsequent one amounts to discovery of an error or a flaw in the reasoning of the decision reversed, varied or over-ruled, it cannot be said that in every such case there is an error apparent on the face of the record. Mere conflict or divergence of opinion cannot amount to an error apparent on the face of the record. It is further observed, that it... is well-settled that the words 'other sufficient cause' occurring in Rule 1 of Order 47, Civil Procedure 'Code, should be understood ejusdem generis with the two grounds immediately preceding them.

6. In Chhajjuram v. Neki I.L.R.(1922) Lal. 127, it has been to observed by the Privy Council that Order 47, Rule 1, Civil Procedure Code, must be read as in itself definitive of the limits within which review of a decree or order is permitted, and the words 'any other sufficient reason' mean a reason , sufficient on grounds at least analogous to those specified immediately previously. Their Lordships of the Privy Council observed as follows:

The three eases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or 'any other sufficient reason'...and the expression 'sufficient' would naturally be read as meaning sufficiently of a kind analogous to the two already specified, that is to say, to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record.

Again in Kotagri Venkata Subbamma Rao v. Vellanki Venkatarama Rao I.L.R.(1901) Mad. 1 : 27 I.A. 197 : 1901 10 M.L.J. 221, it has, been observed by the Privy Council that the High Court has no power to alter its own decree except under the provisions of either Section 206 or Section 623, Civil Procedure Code and the ground of review must have been existing at the time of the decree, and Section 623 does not authorise review of a decree which was right, on the happening of a subsequent event.

7. The learned Counsel for the petitioner, however, has cited the decision of the Federal Court of India in Sir Harisankar Pal v. Anathnath Miter , where it was observed that Order 41, Rule 33, Civil Procedure Code is a purely enabling provision which enables the appellate Court to exercise certain powers in favour of a party who has not filed the appeal in the circumstances of the case and when the interests of justice so require and the powers being discretionary, no Court can be compelled to make an order under this Rule; but if the appellate Court, while it allows the appeal, refuses to make an order in favour of a non-appealing; party, whose position is identically the same as the successful appellant without applying its mind to the provisions of Order 41, Rule 33, Civil Procedure Code, and without considering whether it should or should not exercise its powers under that Rule, the Court is not incompetent to rectify its omission and reconsider the matter if and when it is brought to its notice by way of an application for review. Where in fact there is an omission on the part of the Court to consider the clear provision of Order 41, Rule 33, when the original judgment was passed, such omission would constitute a sufficient ground analogous to those mentioned in Order 47, Rule 1 and the Court would be competent, to reconsider the matter, if it so desired'. But then that decision will not apply to the facts of the case now before me. In the case now before me, it is not as if I failed to consider any provision of law and as a result of my failure to do so an order adverse to the petitioner has been passed. On the other hand, a review of my judgment is asked, for merely on the ground that my interpretation of Section 23-C of the Tamil Nadu Agriculturists Relief Act (VIII of 1973), has been held to be wrong by a subsequent Full Bench decision of this Court.

8. Yet another decision cited by the learned Counsel for the petitioner is the one, in-, Tinkari Sen v., Dulal Chandradas : AIR1967Cal518 , wherein it has been observed that the, mistake whether of fact or law referred to in Order 47, Rule 1 has got to be patent and mistake in interpreting the law correctly will not do, but when clear legal position established by binding authority is overlooked, it becomes an error within Order 47, Rule 1. Mr. Venkatachari, learned Counsel for the petitioner, has argued that while interpreting Section 23-C of the Tamil Nadu Agriculturists Relief Act (VIII of 1973) in the manner in which I had done I had overlooked the decision of a Division Bench of this Court in Turlapati Sesfaayya v. Bollapalli Venkataramayya : AIR1942Mad278 . But then that decision dealt with Section 23 which was somewhat differently worded than Section 23-C. Therefore, it is not as if I had overlooked a binding decision in interpreting Section 23-C of the Act VIII of 1973.

9. Another decision cited by the learned Counsel for the petitioner is the one in Bommadevara Venkatarayalu Naidu v. Lanka Venkataratnamma Garu : AIR1939Mad293 , where it was held that where there was an error of law which obviously and without research into the rulings involves a. lack of jurisdiction to pass the order of which review is sought, it is eminently a case in which the error, though technically an error of law, is apparent on the face of the record and should be corrected at the earliest possible time without driving the parties to the expense of an appeal or revision petition to which there would be no answer. That decision would not apply to the facts of the case now before me for here it cannot be said that there is an error of law involving a lack of jurisdiction to pass the order which is now sought to be reviewed.

10. Another decision cited by the learned Counsel for the petitioner is the one in Mudlapur Murari Rao v. Balavanth Dikshit : AIR1924Mad98 , where it was held that where in ignorance of a decision of the High Court, the Court below decided that the defendants and not the plaintiffs were the preferential heirs to a deceased person and subsequently on the High Court's decision being brought to its notice reviewed its prior judgment, the error of law was one apparent on the face of the record and that the Court below had power to grant a review under Order 47, Rule 1, Civil Procedure Code. Now, in the case before me there is no question of my having ignored any binding decision and hence given a wrong decision and as such the aforesaid decision will not apply to the facts of the case before me.

11. The learned Counsel for the petitioner cited the decision' in Raja Shatrunjit v. Md. Azmat Azikhan : AIR1971SC1474 . But that decision also would not apply to the case now before me for there a review was sought for on account of a retrospective amendment of a statute. A subsequent decision overruling a previous decision would not be the same as a retrospective amendment of a statute and as such the aforesaid decision of the Supreme Court would not apply to the facts of the case now before me.

12. Another decision of the Supreme Court referred to by the learned Counsel for petitioner is the one in Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius : [1955]1SCR520 . In that case it was held that if the judgment does not deal effectively and determine an important issue in the case on which depends the title of the plaintiff and the maintainability of the suit, it is an error apparent on the face of the record and could therefore be reviewed under Order 47, Rule 1. But that decision also would not apply to the case now before me.

13. It appears to me to be well-settled that a review cannot be asked for merely because by reason of a subsequent decision which is binding authority, the earlier decision interpreting the provision of any statute is found to be wrong. I, therefore, see no' grounds to review the order already passed by me in A.A.A.O. No. 70 of 1974, and this petition is dismissed. No costs.

14. In view of the importance of the question of law which arose for decision in this case, leave granted.


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