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Judgment
S. Jagadeesan, J.—The applicant has filed this application to review the order of this Court dated 27.3.1997 in Application Nos. 1106,
1109, 169 and 2800 of 1996.
The applicant has filed the suit for recovery of a sum of Rs. 25,94,910 with interest at 36% p.a., and for a direction directing the respondents to
deliver the possession of the schedule mentioned properties to the applicant.
Pending the suit, applications have been filed. The relief sought for in Application No. 1108 of 1996 is for the attachment of the property
mentioned in the schedule to the Judge''s summons.
Application O.A. No. 169 of 1996 had been filed for the appointment of an Advocate-Commissioner to take possession of the schedule
mentioned machineries.
Application No. 1109 of 1996 was filed seeking police protection for the Advocate-Commissioner.
The respondents herein filed Application No. 2800 of 1996 to raise the order of attachment before judgment dated 19.3.1996 and Application
No. 2801 of 1996 to try the issue of jurisdiction as the preliminary issue.
This Court by order dated 27.3.1997 has disposed of the Application No. 1108 of 1996 directing the respondents to deposit a sum of Rs. 7.5
lakhs within ten weeks from the date of the said order to the credit of the suit, failing which the order of attachment already granted will be made
absolute. In view of the said order, this Court has dismissed the Application Nos. 169 of 1996, 1109 of 1996 and 2800 of 1996.
The present application has been filed on the ground that this Court has taken up all the applications for disposal and without considering that the
relief sought for in Application No. 169 of 1996 is totally a different relief from the relief sought for in Application No. 1108 of 1996, this Court
has dismissed the application. Just because the interim order of attachment has been made absolute by way of condition, the attachment can not
satisfy the arrears to be paid by the defendants. As long as the respondents are in possession of the machineries, they are liable to pay the rent
which they have failed to pay. If the respondents are allowed to continue to be in possession of the machineries, the further arrears would accrue in
respect of the rent payable by the respondents and in order to restrict the accumulation of arrears by the conduct of the respondents it is necessary
that the plaintiffs should be permitted to take delivery of the machineries. Admittedly the machineries are that of the plaintiff and the respondents
have to pay only rent therefor. When the respondents have failed to pay the arrears which resulted in the filing of the suit, the plaintiff is entitled to
take delivery of the machineries and hence the Commissioner ought to have been appointed for the said purpose. Since this Court has dismissed
the said applications under the impression that the scope of the applications are one and the same, it is necessary at this stage to review the earlier
order and restore the Application No. 169 of 1996 and the applicant may be given an opportunity to put forth his case for the necessity of taking
possession of the machineries immediately.
The application was listed on 25.6.1998 on which date the counsel for the respondents sought time for filing counter. The matter was adjourned
to 8.7.1998 on which date further two days time was asked for, for filing counter. Hence today the application was listed. However, the learned
Counsel for the respondents represented that his client did not meet him to give instructions and hence he is not in a position to file the counter and
the matter can be disposed of on merits as he is ready to argue the matter without the counter.
The learned Counsel for the respondents contended that against the order of dismissal of O.A. No. 169 of 1996, the applicant ought to have
preferred an appeal. Without doing so, the present application for review had been filed some time in August, 1997 i.e., nearly five months after
the disposal of the applications. The non-filing of appeal will amount to abandonment of their right to claim any relief in O.A. No. 169 of 1996.
Hence, this application is liable to be dismissed""Further the review application is not maintainable as there is no mistake or misconception of fact
and this Court has taken into consideration every particulars and ultimately dismissed the application O.A. No. 169 of 1996 on the ground that the
order of attachment passed in O.A. No. 1108 of 1996 would safeguard the interest of the plaintiff.
I carefully considered the contention of both the counsel. The review application has been filed on the ground that the application for
appointment of Commissioner i.e., O.A. No. 169 of 1996 had been dismissed under the impression that the scope of the application O.A. No.
169 of 1996 as well as application O.A. No. l 108 of 1996 are one and the same and this Court has failed to consider that the relief sought for in
both the applications are different and distinct. In spite of the order of attachment granted in O.A. No. 1108 of 1996, the applicant is entitled for
the recovery of the machinery also and since without considering that aspect, this Court has dismissed the same. The petitioner should be given an
opportunity to put forth their claim for which the application O.A. No. 169 of 1996 has to be restored.
In a recent judgment reported in Parsion Devi and Others Vs. Sumitri Devi and Others, , the Apex Court has held with regard to the power of
review as follows:
Under Order 47, Rule 1, C.P.C., a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record,
An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the
record justifying the court to exercise its power of review under Order 47, Rule 1, C.R.C. In exercise of the jurisdiction under Order 47, Rule 1,
C.R.C. it is not permissible for an erroneous decision to be ""reheard and corrected"". A review petition, it must be remembered has a limited
purpose and cannot be allowed to be ""an appeal in disguise.
In yet another judgment the Gujarat High Court in the case reported in IOC Ltd. Vs. Deepak V. Shukla, has held as follows:
Thus all the three documents/letters produced by the applicant along with his application are not of any help to the applicant for seeking the review
of the order passed by this Court. The applicant has not made any claim that there is existence of any mistake or error apparent on the face of
record or existence of any analogous ground. If the averments made in the application are considered then it would be quite clear that the applicant
wants me to decide the case again as the applicant feels that my earlier decision is faulty or even incorrect. It is settled law that the court cannot
under the guise of review arrogate to itself the power to decide the case over and again because either it feels or the applicant feels that the
appreciation of evidence, done formerly was faulty or even incorrect. Review cannot be granted on the ground that decision is erroneous on merits
as such a ground being appropriate for an appeal.
On the basis of the above extracted passages, it is clear that when once an order has been passed, unless it is shown that there is some mistake of
fact, the power of review cannot be exercised. If a total reconsideration of the order is made, then it will amount to assumption of the jurisdiction of
the appellate court which is not permissible under the guise of review.
In this case, since the order of attachment has been made absolute, this Court has dismissed the application O.A. No. 169 of 1996. However,
this Court has not considered the right of the applicant as to whether he is entitled to seize the machineries from the respondents during the
pendency of the suit. If the petitioner is able to establish that, in spite of the order of attachment, the petitioner''s claim in the suit may not be
satisfied unless the machineries are siezed and further the respondent is only a lessee and without paying the monthly lease amount he is not entitled
to keep the machineries with him, always the applicant is entitled to seek for the relief. For that purpose, it is unnecessary to review this order;
especially in view of the above said principles laid down by the Apex Court, when no finding has been given with respect to the petitioner''s right, it
is open to the applicant to file an application afresh for the relief of appointment of Commissioner and pursue the same.
So far as the contention of the counsel for the respondent that the non-filing of the appeal would amount to abandonment of the claim is
concerned, the same cannot be accepted. The order of attachment has been made on 27.3.1997. The present application for review has been filed
on 1.8.1997, i.e., nearly four months after the order in O.A. No. 1108 of 1996, etc. For the abandonment of the claim it has to be found that the
applicant has waived such claim even though he has opportunity to put forth the same.
In this case, the applicant has pleaded for the order of appointment of Receiver. But, however, in view of the order of attachment this Court
has dismissed the application, without going into the merits of the same. It is not the case of the respondent that the applicant has waived the right
to claim the appointment of Commissioner before this Court. The mere non-filing of an appeal cannot be considered as the abandonment of the
claim, especially when this Court has not considered the application O.A. No. 169 of 1996 on merits. If this Court has discussed the necessity of
appointment of commissioner in detail and found that it is unnecessary at this stage or the applicant is not entitled for the recovery of the
machineries and thereafter if the applicant has not preferred any appeal against such finding then alone the principles of abandonment can be
applicable against the applicant herein. It is very clear that it cannot be said that the applicant has abandoned his right to seek the relief sought for in
Application No. 169 of 1996.
In view of the above discussion, I am of the view that the power of review is restricted and this Court cannot exercise the power of review to
restore the application which has been dismissed, unless it is made clear that the dismissal is a mistake of fact. As stated already, the petitioner''s
right to seek for the appointment of Commissioner therefore is not affected by the dismissal of the application O.A. No. 169 of 1996. Hence it is
open to the applicant to file a fresh application for the appointment of Receiver to seize the machineries and pursue the same. For the reasons
stated above, this application is dismissed.