Bhaskaran and Others vs Dhanalakshmi Bank Ltd.

T.V. Ramakrishnan, J.—This is a petition filed u/s 114 read along with Order XLVII, Rule 1 of the CPC for reviewing the judgment and decree passed by this Court in E.F.A. No. 34 of 1989 as early as on 9th February 1990.

Execution First Appeal was one filed u/s 96 read along with Order XXI, Rule 90 CPC against an order refusing to set aside a sale effected in execution of the decree passed in O.S. No. 72 of 1985 on the file of the Sub Court, Shertallay. It is relevant to note that though at the time of typing the memorandum of appeal the provision under which the appeal was intended to be filed was typed as Order XLIII, Rule 1(j) read along, with Section 104 Code of Civil Procedure, the same was struck off at the time of filing the appeal and Section 96 and Order XXI, Rule 90 CPC was shown as the provision under which the appeal was actually filed. A learned Single Judge of this Court has heard and disposed of the appeal setting aside the confirmed sale in the following manner.

In these circumstances, I think I am justified in setting aside the order impugned in this appeal on condition that the judgment debtors deposit in the execution Court an amount of Rs. 50,000 for payment to the decree holder on or before 9th March, 1990, and out of the balance half amount due to the decree holder, the judgment debtors have to deposit half the amount on or before 8th June, 1990 and the remaining half on or before 9th August, 1990. When the entire decree amount, execution cost, interest and other incidental expenses incurred by the decree holder, is paid as stipulated above, the sale will stand cancelled. If the judgment debtors default in any one of the payments as aforesaid, the appeal will stand dismissed.

The relief prayed for in the E.F.A. was to set aside the order passed in E.A. No. 15 of 1989 refusing to set aside the sale effected in execution of the decree passed in O. S. No. 72 of 1985. As per the order passed in the appeal, the sale was set aside on payment of the entire decree amount, execution costs, interest and other incidental expenses as required by the CPC What is more is that the Appellants-review Petitioners were allowed to effect such payments in two or three instalments also with a default Clause that if default is committed in making deposit as directed, the appeal will stand dismissed. Thus the judgment sought it be reviewed is one totally in favour of the Appellants-review Petitioners. Review petition was filed only on 1st January 1992, with a petition to condone the delay after the Petitioners have committed default in depositing the amounts as directed in the judgment in the E.F.A.

The grounds alleged for review are thus: (1) the appeal being one filed under Order XLIII, Rule 1(j) Code of Civil Procedure, the same could not have been heard and decided by a learned Single Judge in the light of the provisions contained in Section 3(13)(d) of the Kerala High Court Act, 1958 and (2) as the valuation for the purpose of jurisdiction in the appeal exceeded Rs. 1,00,000 the appeal could not have been heard and decided by a learned Single Judge. Excepting the above two grounds there is no case that the judgment is erroneous and illegal in any other respect and that the review Petitioners were aggrieved by the judgment at the time when it was passed and thereafter till default was committed by the Petitioners in depositing the amounts as directed therein.

The provisions in the CPC dealing with the power of review is clear to the effect that it can be invoked only by a person ''considering himself aggrieved'' by a decree, judgment or order ''made against him''. Section 114 states that "subject as aforesaid any person considering himself aggrieved" may apply for a review. The provision in Order XLVII, Rule 1 is also to that effect. Thus it is clear that the basic requirement to be satisfied by a review Petitioner is that he should be a person aggrieved by the decree, judgment or order sought to be reviewed. If the decree, judgment or order was one in favour of a party to a proceeding, such a party cannot be considered as a person aggrieved by it.

In this case, the judgment in E.F.A. was in favour of the Petitioners. They cannot be considered as persons aggrieved by the said judgment. The E.A. filed by them was for setting aside the sale in execution. That prayer was refused and the sale was confirmed as per the impugned order. That order was set aside in the appeal and the sale itself was sat aside subject to conditions in respect of which they had no grievance or they could not have raised any grievance in law. It may not be possible in the circumstances hold that the Petitioners are persons aggrieved by the judgment sought to be reviewed. Though not squarely applicable, the principles laid down in the decisions reported in Ibemhal Devi v. Snatombi Rajkumari AIR 1952 Man 1 and Usman v. Samawati ILR 1953 Pat 507 seems to support the above view which I have taken in the matter. Usman''s case ILR 1953 Pat 507 would show that even if a party is aggrieved by the decree, judgment or order that by itself may not entitle him to file the application for review under Order XLVII. He must also show that such judgment, decree or order by which he is aggrieved is one ''made against him''. In this view, I find that the review Petitioners cannot be considered as persons aggrieved by the judgment sought to be reviewed. It cannot also be held that the judgment sought to be reviewed is a judgment made against them. As such I do not find any ground to entertain this review petition and to review the judgment which was totally in their favour.

It may also be relevant to note that though the memorandum of review petition proceeds on the basis that the E.F.A. is one filed under Order XLIII, Rule 1(j) Code of Civil Procedure, going by the statement contained in the E.F.A. it is an appeal filed u/s 96 and Order XXI, Rule 90 CPC As already noted, Order XLIII, Rule 1(j) read with Section 104 CPC typed originally in the memorandum of appeal was actually scored off and was substituted by Section 96 Order XXI, Rule 90 CPC If the appeal is one filed u/s 96 read with Order XXI, Rule 90 CPC as it actually purports to be, the provisions contained in Section 3(13)(d) of the High Court Act will not be a bar against the learned Single Judge in considering and disposing of the appeal. It is also equally relevant to note that the Petitioners have got a favourable judgment and enjoyed its benefits to some extent and have approached this Court with this review petition only after failing to comply with the conditions imposed by this Court as per the judgment. The total absence of any allegation in the review petition that the judgment was prejudicial to them in any manner is also an important aspect to be noted in entertaining the review petition and giving relief to the Petitioners on the ground of absence of jurisdiction in the Court which has passed the judgment.

In this view of the matter, I would dismiss the Review petition as not maintainable.