K.P.M. Abdulrahimankutty Haji vs P.I. Nafeesabi and Another

K.V. Sankaranarayanan, J.—This is an application for review of the judgment in A.S. No. 32/94 and for incorporating a provision for adjustment of Rs. 30,000 which is provided for in the preliminary decree.

A.S. No. 32/94 was an appeal from the final decree in O.S. No. 277/80 on the file of the Sub Judge, Kozhikode. The suit was for rendition of accounts of a dissolved partnership firm. In the plaint itself, it was conceded that an amount of Rs. 30,000 had been paid to the Plaintiff as security for perfomance of an undertaking by the Defendants. The Plaintiff had stated that he was entitled to adjust the security amount towards the amounts due to him. In the preliminary decree, there was a specific provision that the amount of Rs. 30,000, to be paid by the Plaintiff to the Defendants, shall be adjusted in the amounts due to the Plaintiff as far as possible. There was an appeal and second appeal from that judgment. But this provision was not under challenge by any ot the parties. Subsequently, the Plaintiff applied for a final decree. The Sub Judge passed a final decree. In the final decree, there is no specific provision for adjustment of this amount. In the appeal from the final decree, this Court upheld the direction for payment of Rs. 54,000 due to the Plaintiff as per Clause 19 of Ext. B-13 agreement. This Court also clarified that interest was payable on the entire amount covered by the decree. The Plaintiff/Respondent pointed out that there was an omission to incorporate a provision for costs which was allowed by the preliminary decree. This Court noticed that it was only an oversight or a mistake and directed the final decree to be amended providing for that amount.

First Defendant/Appellant has filed this petition praying for review of the judgment and for providing for adjustment of Rs. 30,000 conceded in the plaint and allowed by the preliminary decree. The petition is opposed mainly on the ground that an application for review is not maintainable on the grounds stated. In the petition, it is stated that due to an inadvertant mistake, the amount of Rs. 30,000 payable to the Appellant was not brought to the notice of this Court and this Court proceeded on the basis that the challenge was only as regards the direction for payment of Rs. 1,500 per month to the first Respondent. Learned Counsel has brought to my notice the decision in Hajara Umma v. Muhammed Kunhi Haji ILR 1968 Ker 631 to show that a conditional order cannot be reviewed on the ground that due to an oversight of the advocate the condition was not complied with and also the decision in S. Anthony v. Francis R. Anthony AIR 1962 Mad 304 to the effect that negligence of the counsel is not a ground for review. Learned Counsel has also brought to my notice the decision of the Supreme Court as to the scope of the term "error apparent" as explained in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, and the decision in Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, to the effect that an ommission to consider some alternative situations is not a ground for review.

I agree with learned Counsel for the Respondent that actually, there is no scope for review of the judgment under Order XLVII Rule 1 Code of Civil Procedure. There is no error apparent on the face of the records in the judgment jof this Court. As already noticed, the adjustment of Rs. 30,000 was not a subject matter of dispute in the appeal at all. For that matter, it was not the subject matter even in the first appeal or the second appeal from the preliminary judgment. Actually, it is a matter that is conceded in the plaint. So, it is only an ommission to incorporate the provision in the final decree. This can be corrected by the lower Court itself on verification of the records. It is also to be noticed that even as regards the omission regarding costs, which was pointed out that at the time of the judgment, this Court only directed an amendment of the final decree incorporating the provision for costs. Similarly, there will be a direction to the lower Court to incorporate the provision for adjustment of Rs. 30,000 also in the final decree.

The petition is disposed of with the above direction. No order as to costs.