Parsion Devi v Sumitri Devi (1997)

If Aribam Tuleshwar Sharma states the limits of review, this case supplies the working test for the ground that is invoked in practice — error apparent on the face of the record — and the sentence that decides most review petitions: an error which is not self-evident and has to be detected by a process of reasoning is not an error apparent on the face of the record.

It matters for a second reason that candidates rarely notice. The reviewing judge in this case had recited the statutory language; he had recorded in terms that there was a mistake or error apparent on the face of the record. The Supreme Court held that this made no difference. Review jurisdiction is tested by what the order actually does, not by the words it uses.

On 28 November 1977 a suit filed by the appellants was decreed and an injunction issued to the defendant-respondents to close down a passage carved out by opening a door from the wall, the defendants being further restrained from using that passage.

On 7 August 1986 an application for execution of that decree was filed in the executing court on the ground that the injunction was being violated. The judgment debtor filed objections and raised a preliminary objection that the execution application was barred by time. By order dated 6 May 1987 the executing court upheld the preliminary objection and held the execution application to be barred by time.

The matter was taken in revision to the High Court of Jammu and Kashmir. On 25 April 1989 K.K. Gupta J allowed the civil revision petition, holding that the case was covered by Article 181 of the Jammu and Kashmir Limitation Act and that the executing court's opinion that it fell under Article 182 was wrong; the matter went back to the executing court for decision on the merits.

The judgment debtors then filed a review petition. On 6 March 1997 G.D. Sharma J, a different single judge of the same High Court, allowed the review, set the order of 25 April 1989 at naught and restored the executing court's order of 6 May 1987. The decree holders appealed to the Supreme Court by special leave.

For the appellants it was argued that the impugned order transgressed the powers of review available under Order 47 Rule 1, that the review petition had been treated as if it were an appeal, and that none of the grounds stated in the review application justified review.

For the respondents it was argued that the review court had only set right the mistake committed by Gupta J by correctly interpreting the decree and the Act to the facts of the case.

The grounds in the application were not review grounds. On a perusal of the review application the Court found that none of the grounds stated in it could strictly speaking be said to fall within the ambit and scope of Order 47 Rule 1. The review petition in effect challenged the correctness of Gupta J's order on the question of limitation without pointing out any error apparent on the face of the record which could have been reviewed. Sharma J appeared to have ignored the limits of the jurisdiction while reversing that order on merits.

The settled position. Review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1. The Court recalls Thungabhadra Industries Ltd v Government of Andhra Pradesh, where it had drawn the distinction — real, though not always capable of exposition — between a merely erroneous decision and one vitiated by error apparent, and had said that a review lies only for patent error. It also recalls Meera Bhanja v Nirmala Kumari Choudhury, which quoted Aribam Tuleshwar Sharma with approval and held once again that review proceedings are not by way of an appeal.

The test. Under Order 47 Rule 1 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 such an error. In exercise of that jurisdiction it is not permissible for an erroneous decision to be "reheard and corrected". A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise."

The distinction that governs the remedy. "There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction." Each kind of error has its own forum, and choosing the wrong one is fatal.

Reciting the formula does not create jurisdiction. Sharma J had in fact recorded that there was a mistake or an error apparent on the face of the record, and that it was not of a nature which had to be detected by a long drawn process of reasoning. The Supreme Court held that he had in truth found the earlier order to be an erroneous decision, though without saying so in so many words, and that "mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction."

Sharma J clearly overstepped the jurisdiction vested in the court under Order 47 Rule 1. "Recourse to review petition in the facts and circumstances of the case was not permissible." The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail Gupta J's order; they could not seek a review of it. The order dated 6 March 1997 was set aside and the appeal allowed, with no order as to costs.

Setting aside the review order revived Gupta J's order of remand, but the Court held that this did not solve the problem, because neither the executing court nor Gupta J had recorded any finding as to when the decree was allegedly breached — an essential fact, since it had to be determined before it could be decided whether Article 181 or Article 182 applied.

The executing court was therefore directed, while deciding the execution application on the merits, to return a finding as to when the cause of action accrued to the decree holder and then to consider which Article of the Limitation Act applied, uninfluenced by the observations of either judge; and to decide that question not as a preliminary objection but along with all other issues on merits, disposing of the execution application expeditiously.

The judgment debtors were not left without a remedy; they were told they had chosen the wrong one. That is the practical lesson of the case. Before advising a review, ask whether the complaint is that the order is wrong or that it is patently defective on its own face. Only the second is a review; the first is an appeal, and dressing it in the language of Order XLVII Rule 1 will not save it.