Gauhati High Court
Manabendu Das Choudhury vs State Of Tripura And Ors. on 30 April, 2004
Equivalent citations: AIR2005GAU69, (2004)3GLR430, AIR 2005 GAUHATI 69, (2005) 2 CIVLJ 546 (2004) 3 GAU LR 430, (2004) 3 GAU LR 430
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. This revision petition under Section 115 of the Code of Civil Procedure is directed against the order dated 24.6.2002 passed by the learned Civil Judge (Sr. Division), North Tripura, Dharmanagar in Civil Misc. 19 of 2001 which arose out of Execution case No. Ex. 4(T)/99 whereby the claim of the petitioner for payment of interest @ 12% on the decretal amount with effect from 5.5.1999 to 22.6.01 was rejected.
2. The facts of the case, in a nutshell, are that the petitioner had instituted a suit before the learned Civil Judge, Senior Division for declaration and recovery of money, which was registered as T. S. No. 19 of 1997. By the judgment and decree dated 20.4.1998, learned Civil Judge dismissed the suit. Againest the said judgment and decree, the petitioner preferred an appeal before this Court in F.A. 77 of 1998. The Court, by the order dated 5.5.1999, allowed the appeal and directed the respondents to pay a sum of Rs. 3,55,982 along with interest @ 12% per annum from the date of filing of the suit to the date of decree to the petitioner.
3. It appears that the respondents thereafter filed a review petition against the judgment and decree before this Court which was registered was review petition No. 7 of 1999. By the order dated 22.6.2001, this Court dismissed the review petition holding that no sufficient ground was made out for reviewing the judgment and decree impugned therein. It further appears that the respondents, without satisfying the decree, through the Forest Range Officer filed a suit being T. S. No. 9/99 against the petitioner for declaration that the decree dated 5.5.1999 of F. A. 77 of 1998 in connection with T.S. No. 19 of 1997 was fraudulent, inoperative and for recovery of money amounting to Rs. 5,94,523 by way of forest royalty. The Forest Range Officer also filed an application in Misc. No. 11 of 1999 for staying the execution proceeding of Ex(T) No. 4 of 1999, which was allowed by the order dated 16.9.99. It also appears that the following the filing of review petition No. 7 of 1999, this Court had also stayed the execution proceeding. It is on the record that after disposal of the review petitioner No. 7 of 1999, the state-respondents submitted a cheque amounting to Rs. 4,42,427 before the executing court on 10.8.2001 being the interest payable upto 5.5.1999 and that the cheque was withdrawn by the petitioner on 13.8.2001, which apparently resulted in dropping the execution proceeding. Subsequently, the petitioner filed an application under . Section 151 CPC before the learned Civil Judge claiming further interest from the disposal of the First Appeal upto the disposal of the review petition which was registered as Civil Misc. Case No. 19 of 2001. The respondents filed objection against the application of the petitioner. By the order dated 24.6.02, the learned Civil Judge dismissed the petition. Aggrieved by the said order, the petitioner is now approaching this Court by way of this revision petition.
4. Mr. D.K. Biswas, learned Counsel for the petitioner submits that after dismissing the said Review Petition by this Court, the original judgment and decree dated 5.5.1999 got merged with the judgment dated 22.6.01 and, as such, the petitioner is entitled to the interest with effect from 5.5.1999 till 22.6.2001. According to him, the payment of the decretal amount with interest could not be effected due to the filing of the review petition by the respondents and, as such, the respondent are duty bound to compensate the petitioner for the inordinate delay in enjoying the fruits of his litigation. It, is submitted by the learned Counsel for the petitioner that the learned Civil Judge in not directing the payment of interest has committed the jurisdictional error and that it is certainly within his jurisdiction to rectify the mistake apparent in the judgment or to give a full meaning to the judgment by filling up the blanks.
5. Mr. U.B. Saha, learned Govt. Advocate counters this submission by drawing my attention to the order dated 13.8.01 passed by the executing court in Ex. (T) 4 of 1999 wherein it is recorded that the learned lawyer of the decree holder (petitioner herein) did not dispute about the decrial amount deposited by the judgment debtor and claimed no further amount and that the decree was fully satisfied. It is further submitted by the learned Counsel for the State-respondents, this order was passed after disposal of the review petition by this Court and that the amount offered by the respondents was readily accepted by the petitioner and that under such circumstances, the petitioner can no longer have any legitimate grievance against the stale-respondents.
6. After considering the rival contention of the parties, the point for determination in this case is whether the order dated 22.6.01 stood merged with the order dated 5.5.1999 passed in F.A. 77 of 1998 so as to make the period between 5.5.1999 and 22.6.2001 as continuation of the suit. I have carefully gone through the decision of the Apex Court cited by Mr. D. K. Biswas, learned Counsel for the petitioner in Sushil Kumar Sen v. State of Bihar, AIR 1975 SC 1185 wherein it is held that the effect of allowing an application for review of a decree is to affect the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. The learned Civil Judge considered the effect of the aforesaid decision and the order passed by this Court in F. A. 77 of 1998 and in an elaborate and well reasoned judgment held that the order dated 5.5.1999 in F. A. 77 of 1998 was not an order passed after reaching the stage under Order 47 Rule 8 of the CPC. On the basis of this finding, the learned Civil Judge concluded that the order dated 22.6.01 passed in the review petition No. 7 of 1999 did not amount to a decree confirming the earlier decree already passed. His conclusion was reached on the following reasoning:- This Court after admission of the review petition issued notice upon the opposite party as per provision of Order 47 Rule 4(2) of the CPC and after hearing both sides, this Court rejected the revieve application under the provision of Order 47 Rule 4 (1) of the CPC, in that view of the matter, the order dated 22.6.01 was passed before it reached the stage under Order 47 (8) of the CPC. In other word, according to the learned Civil Judge, the order dated 22.6.01 passed in the review petition does not have the effect of modifying or reversing or confirming the decree originally passed until and unless the review petition terminates with the final order passed in terms of the Order 47 Rule 8 of CPC.
7. The power of this Court to interfere in a revision petition under Section 115 of the Code is no longer is integra. Under Section 115 of the Code, the High Court is empowered to call for the records of any case which has been decided by any Court subordinate thereto, if it has exceeded or failed to exercise the jurisdiction vested in it or has acted illegally or with material irregularity. In other words, revision applies to the matter of jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it, and if a subordinate court has jurisdiction to make the order, it has made, and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however, profoundly it may differ from the conclusion of that Court on question of fact or of law. The word "illegal" and "with material irregularity" mentioned in Section 115(1)(c) do not cover either error of fact or of law; they do not refer to the decision arrived at, but merely to the manner in which it is reached. The error contemplated by this Clause may relate either to breach, or some provisions of law or material defect of procedure affecting the ultimate decision, and not to errors of fact or of law; after prescribed formalities have followed.
8. I have carefully examined the impugned order within the parameters for exercise of a revision jurisdiction referred to above and so examined, the impugned order of the learned Civil Judge does not suffer from improper exercise of jurisdiction or non-exercise of it or illegal assumption of it. It is not the case of the petitioner that the learned Civil Judge has no jurisdiction to make the impugned order it has made, nor can the petitioner points out that by passing the impugned order, the learned Civil Judge has acted in breach of any provisions of law or committed any error of procedure which is material and which have affected the ultimate decision. On the contrary, I am of the firm view that the reasonings and conclusions of the learned Civil Judge do not suffer from any infirmities such as irrationality or jurisdictional error warranting interference of this Court under Section 115 of the Code.
9. For what has been stated above, this revision petition has no merit and is liable to be dismissed, which I hereby do. However, on the facts and circumstances of the case, there shall be no order as to costs.