Madras High Court
K. Gopalakrishniah vs K. Subramaniam And Ors. on 1 December, 1988
Equivalent citations: (1989)1MLJ275
Order K.M. Natarajan, J.
1. This revision is directed by the third defendant against the order passed by the Third Assistant Judge, City Civil Court, Madras, dismissing the petition I.A. No. 20256 of 1985 to review the judgment in O.S. No. 4851 of 1984.
2. The facts which are necessary for the disposal of this revision can be briefly stated as follows:
The first respondent herein filed the above suit O.S. No. 4851 of 1984 on the basis of a mortgage against defendants 1 and 2 who are respondents 2 and 3 herein, son and daughter of the deceased mortgagor, O.S. Nataraja Chettiar. The revision petitioner herein was added as the third defendant to the said suit on the ground that he is holding a subsequent charge over the suit property. After contest, the Court below decreed the plaintiff's suit with costs while dismissing the counter claim by the third defendant (revision petitioner) who are permitted by the Subordinate Judge, Salem in I.A. No. 290 of 1979 in O.S. No. 599 of 1976 (later the suit was transferred to the City Civil Court) to pay the Court fee for enforcing the charge in his favour and he accordingly paid the court-fee. The lower Court dismissed the claim on the ground that it was not a charge; but was a charge-decree in favour of the third defendant and that though the acknowledgement of liability made by virtue of the endorsement Exhibit A.10 made on Exhibit A.9 document is not a forged one, but a genuine one, the claim is barred by limitation as the charge-decree was not enforced within the time and that the acknowledgment will not save limitation. The revision petitioner filed the review petition I.A. No. 20256 of 1985 to review the judgment and the learned Assistant Judge dismissed the application. Aggrieved by the same, this revision is filed.
3. The revision petitioner appeared in person and submitted that the charge created by virtue of Clause 3 of the compromise decree in O.S. No. 16 of 1953 on the file of the District Court, Salem which has been marked as Exhibit A.9 is not a charge-decree, but it is only a mere charge and as such it is to be enforced only by a separate suit. Further, the amount due under the charge cannot be realised by executing the compromise decree in O.S. No. 16 of 1953. as there is no charge-decree. Hence the counter claim made in the mortgage suit is in order since under Exhibit A.9. compromise decree no charge decree is granted in his favour his claim is not barred under Order 34, Rule 15 Clause 2, C.P.C. According to the petitioner even in the counter filed by the defendant in I.A. No. 290 of 1979 which is a petition for permission to pay court fee on the counter-claim for the charge the first defendant himself has contended that it is only a charge and that the remedy of the third defendant is only to file a separate suit for enforcing the charge. Since it is only a charge, certainly the endorsement Ex.A-10 saved the period of limitation in view of Sections 18 and 1.9 of the Limitation Act. Lastly it was submitted by the petitioner that the decision relied on by the court below is not applicable to the charge but only to charge decree and since it is misinterpretation of the compromise decree Ex.A 9, which is an error of fact and law apparent on the face of the record, the Court below ought to have allowed the application for review.
4. The facts involved in the revision are not in dispute. The main question to considered is whether under Clause 3 of the compromise decree in O.S. No. 16 of 1953 a charge is created over the properties or a charge-decree was passed and secondly whether the petitioner is entitled to invoke Order 47, Rule 1, C.P.C., for review of the judgment and the decree without resorting to filing an appeal against the said judgment and decree. For proper appreciation of the contentions of both the parties and the decision of the Court below as to whether it is a charge or a charge decree created in favour of the petitioner, it is worthwhile to extract the relevant Clause 3 of the compromise decree In O.S. No. 16 of 1953, dated 17-11-1983 which reads as follows:
In respect of the sum of Rs. 5,000 due to the plaintiff from the first defendant and mentioned in paragraph 7 of the decree in O.S. No. 86 of 1949 Sub Court, Salem, in consideration of the plaintiff for bearing to sue, and in consideration of the plaintiff giving time for payment, the parties agree that the plaintiff be entitled to a charge on the first defendant's share of the suit property. The plaintiff be entitled to interest thereon at 12 per cent per annum from 1-1-1951 till date of repayment. The plaintiff be entitled to realise the said amount by sale of the first defendant's share of the suit property. The plaintiff may register this compromise or decree and be entitled to recover the said expenses from the Receiver. The charge that is hereby created in favour of the plaintiff do operate subsequent to the three mortgages stated above dated (1) 30-7-1943; (2) 26-11-1947 and (3) 19-6-1952.
In the counter filed by the first defendant in I.A. No. 290 of 1979 it is specifically stated in paragraphs 2 and 4 that only a charge has been created under the decree and that he can enforce the charge by means of an independent suit and even that charge is time barred. The revision petitioner submitted that the decree in O.S. No. 16 of 1953 is a compromise decree, that it is nothing but a contract between the parties and that in view of the fact that only a charge has been created by the compromise decree, his remedy is either to file a suit for enforcing the said charge or make a counter-claim in the suit filed by the mortgagee wherein he is impleaded as a subsequent charge-holder.
5. The Court below relied on the decision of this Court reported in Noor Sahib v. Mohammed Ghouse , for holding that it is a charge decree. That was a case where not only a charge is created in Clause 4 of the said compromise decree but it also provided that in default of payment under the charge as mentioned in the compromise, the plaintiff shall be entitled to file sale papers and bring the properties to sale and nett proceeds shall be applied towards the payment of the sum together with further costs in execution of the decree. It is clear form the above decision that not only a charge was created but it is provided that the plaintiff is entitled to enforce the said charge under the very same decree by bringing the properties to sale for realising the amount due under the charge. But, that is not the case here. Hence, as rightly contended by the revision petitioner, that decision is not applicable to the facts of this case. When once it is held that is only a charge and not a charge-decree, in view of Order 34, Rules 14 and 15, C.P.C. the remedy is only to file a separate suit and in any event it cannot be said that a claim on the basis of the charge cannot be made as a counter-claim in the subsequent suit filed by another mortgagee. When once it is found that Clause 3 of the compromise decree in O.S. No. 16 of 1953 is only a charge in view of the finding of the Court below that the endorsement Ex.A-10 on Ex.A-9, is genuine and not a forged one as contended by the first respondent, first defendant, the counter claim is within the time in view of Sections 18 and 19 of the Limitation Act. Only if it is considered to be a charge-decree the revision petitioner cannot rely on Explanation B to Section 19 of the Limitation Act. Next it was contended by the learned Counsel for the respondent that even in that case, the proper remedy is only to file an appeal and not to file a review petition. It is seen from the impugned order that the Court below dismissed the review petition on the ground that it not the case of the petitioner that the review is sought for on the ground of discovery of a new or" important matter which could not be produced by him at the time in spite of his exercise of due diligence. It is to be noted that the case of the revision petitioner is that there is an error apparent on the face of the record and as such the review is called for. According to case of the revision petitioner, a mere look of Clause 3 of the earlier compromise decree marked as Ex.A-9, clearly shows that it is a charge and not a charge-decree. As such, the court has got ample power under Order 47, Rule 1, C.P.C. to review its own judgment and decree. In this connection, the revision petitioner drew the attention, of this Court to a decision reported in Valliammal v. Authorised Officer, Land Reforms Coimbatore (1972) T.N.L.J. 609, where V. Ramaswami, J. (as he then was) held-
Order 47, Rule 1, C.P.C., provides that person considering himself aggrieved by a decree or order may apply for a review of the judgment on account of some mistake or error apparent on the face of the record." The mistake or error within his provision is not confined to mistake or error of facts. Even on a mistake or error of law, if apparent on the face of the record, the order is liable to be reviewed. The view expressed by the learned Judge in the decision in C.R.P. No. 916 of 1971 is contrary to the provisions of the Act and therefore, a review is called for.
On the other hand, the learned Counsel for the respondent drew the attention of this Court regarding the scope of review as laid down in Ramaswami Padayachi v. Shanmugha Padayachi , where it was held-
It is now settled that the mistake or error justifying a review under Order 47, Rule 1, C.P.C., is most often an error of fact and may in certain cases be of law also. But in all cases, it should be an error of inadvertence; in the case of an error of law it should not have been arrived at by a process of conscious reasoning. Further, if it is an error of law, the correction suggested or asked for should be such that the bare statement carries conviction without further reasoning or extraneous matters. So an erroneous view on a debatable point of law or a failure to interpret the law correctly would not be an error of law apparent on the fact of the record. The test in such matters is whether the Court itself would have made the correction if it was aware of the particular fact of circumstance while writing the judgment. In other words, whether it is an inadvertent mistake or error or a conscious application of mind leading to a result which one party may consider to be erroneous or a mistake.
Applying the above ratio to the facts of this case it is clear from the compromise decree Ex.A9 that it is only a charge and not a charge decree, and as such, no further extraneous matter of evidence is required to hold that it is a charge It is nothing but an error on the part of the lower Court in construing the compromise decree Ex.A9, that is, Clause 3 of Ex.A9 decree, to find out whether a charge or charge decree has been passed by virtue of the said compromise. Applying the ratio laid down in the said decision, the review ought to have been allowed in this case.
The next decision relied on by the learned Counsel for the respondent is Chaurasia v. Mathew Cherian wherein it has been held-
A decision erroneous in law is certainly no ground for ordering a review. If a court had decided a point but decided it erroneously the error cannot be said to be one apparent on the face of the record or even analogous to it. A mere conflict or divergence of opinion cannot amount to an error apparent on the face of the record.
The proposition of law is not disputed. But it is not applicable to the facts of this case, as it was already held that the error is apparent on the face of the record and that it does not require any extraneous matter to show its correctness. Further, the error is so manifest and clear that no Court will permit such an error to remain on the record. As observed by their Lordships of the Supreme Court in Harivishnu v. Ahmed Ishaque , "What is an error apparent on the face of the record cannot be definite, precisely or exhaustively, there being an element of indefinite-ness in it very nature and it must be left to be determined judicially on the facts of each case." Where a judgment proceeds on an erroneous assumption as to the material facts, namely, whether Clause 3 of Ex.A.9 compromise decree would amount to charge or charge-decree certainly it is a ground for a review if it is brought to the notice of the court that the very terms of the compromise would amount only to charge and not a charge decree. As rightly contended by the revision petitioner, the error in the instant case is so patently clear and apparent on the face of Clause 3 of the compromise decree Ex.A9 and the Court below failed to exercise its discretion properly and legally in disposing of the review petition, and as such certainly interference is called for in this revision,
6. In the result, the revision is allowed, The order passed by the Court below in I.A. No. 20256 of 1985 is hereby set aside and the same is allowed as prayed for. However, in the circumstances of the case, there will be no order as to costs.