NEERAJ JAIN & ANR. versus SUBHASH VOHRA IN THE HIGH COURT OF DELHI AT NEW DELHINEERAJ JAIN & ANR. versus SUBHASH VOHRA
- The appellants vide the instant review petition filed under Order
XLVII Rule 1 read with Section 151 of Code of Civil Procedure, 1908,
(“CPC” hereinafter) seeks the following reliefs:
“A. Review the order dated 24.1.2024 to the extent it denies
interim relief of stay of impugned judgment;
(B). Pass an such order(s)/directions as this Hon’ble Court may
deem fit and proper in the present circumstances of the case.” - The relevant facts that have led to the filing of the accompanying
Regular First Appeal (“RFA” hereinafter) are reproduced herein below:
Review Pet. 42/2024 in RFA 64/2024 Page 2 of 14
a) The appellants approached the respondent in the year 2010 as owners
of shop bearing no. X/212, Mohalla Ram Nagar, Gandhi Nagar,
Delhi– 31 (hereinafter “suit property”) for a total sale consideration
amount of Rs.40,50,000/-
.
b) Thereafter, the parties executed an Agreement to Sell dated 20th July,
2010, whereby the part payment of Rs.20,50,000/- was made by the
respondent to the appellants and the remaining payment was agreed to
be paid on the date of execution of the sale deed on or before 30th
August, 2010.
c) Since, the appellants failed to execute the sale deed, as agreed upon by
the parties, hence in light of the same the respondent lodged an F.I.R
bearing No. 289/10 under Section 420 read with Section 34 of the IPC
against the appellants at Police Station Gandhi Nagar, Delhi.
d) Pursuant to which the appellants were convicted in the trial by the
learned Metropolitan Magistrate respondent and were subsequently,
acquitted by learned Additional Session Judge in appeal.
e) During the course of investigation of the criminal case, it came to the
light that the brother of the appellants had filed a partition suit titled
“Anil Jain Vs. Prabhash Jain & Ors.” before learned ADJ, Tis Hazari,
Delhi and the same was pending at the time of execution of the
agreement to sell dated 20th July, 2010.
f) Thereafter, vide order dated 5th August, 2010, the learned Trial Court
granted an order for injunction with respect to the suit property due to
which the said agreement to sell could not be specifically performed.
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g) Aggrieved by the actions of the appellants the respondent herein filed
a suit seeking a money decree for a sum of Rs.41,00,000/- along with
pendente lite and future interest at the rate of 18%.
h) In view of the same, the learned Trial Court passed a money decree in
favour of the respondent herein, for a recovery of sum of
Rs.20,50,000/- with interest at the rate of 8% from 6th September,
2011, till the date of its realization observing that the Agreement to
Sell dated 20th July, 2010, executed between the parties was proven
and the said amount was paid as a part of advance money for
purchasing a shop.
i) The appellants preferred the accompanying Regular First Appeal
No.64 of 2024 under Section 96 of Code of Civil Procedure, 1908,
read with Order XLI of Code of Civil Procedure, 1908, against the
judgment and decree dated 17th October, 2023, (“impugned
judgment/decree” hereinafter) in C.S. No. 124/2016 passed by the
Learned ADJ-03, East, Karkardooma Courts, Delhi (“ADJ”
hereinafter).
j) An application for stay bearing no. CM APPL. No.4651/2024 was
preferred before this Court by the appellants seeking stay on the
execution of the judgment/decree passed by the learned Trial Court,
against which the appellants has preferred the instant appeal.
k) This Court passed an order dated 24th January, 2024, (“impugned
Order” hereinafter) observing that since the appellant submit that they
are financially incapable to deposit the decretal amount with this
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Court, therefore no interim stay can be granted in favour of the
appellants.
l) Aggrieved by the impugned order dated 24th January 2024, the
appellants have preferred the instant review petition. - Learned counsel appearing on behalf of the appellants submitted that
they are not in a position to deposit the decretal amount since the appellant
no. 1 is currently employed as a peon in a private medical clinic and the
appellant no.2 is currently unemployed. Therefore, in light of the financial
disability and the prevailing medical condition of the appellants, it was
submitted before this Court on the date of passing of the impugned, that the
appellants are not in a position to deposit the decretal amount. - It is submitted that pursuant to the passing of the impugned order, the
son-in-law of the appellants has offered to advance a loan of Rs. 20 lakhs to
the appellants for depositing the decretal amount with this Court, in order to
seek stay on the execution of the impugned judgment/decree. - It is submitted that the appellants pleaded before this Court on the date
of passing of the impugned order to accept the security in the form of shop,
bearing no. 212 situated at Ram Nagar Chowk, Gandhi Nagar, Delhi (“the
Shop” hereinafter). It is settled position of law that the High Court may
permit furnishing of security instead of insisting on deposit of decretal
amount in cash of the said amount and the learned counsel for the appellants
have placed reliance on case titled Sihor Nagar Palika Bureau v.
Bhabhlubhai Virabhai & Co., (2005) 4 SCC 1 to substantiate the said
contention.
Review Pet. 42/2024 in RFA 64/2024 Page 5 of 14 - It is submitted that the shop has been attached and directed to be sold
via auction by the orders dated 9th January, 2024, and 19th January, 2024,
passed by the learned ADJ. Moreover, the said auction will lead to
irreparable loss to the appellants. - Hence, in light of the foregoing submissions, the learned counsel for
the appellants submitted that this Court may grant them the liberty to either
deposit the said decretal amount or securitize the shop and accordingly, grant
stay on the execution of the impugned judgment/decree. - Per Contra, the learned counsel appearing on behalf of the respondent
vehemently opposed the instant review petition submitting to the effect that
the same is liable to be dismissed being devoid of any merits. - It is submitted that the appellants cannot seek appreciation of new
evidence placed on record in the garb of a review petition. The review
petition has a very limited scope and cannot be allowed to be an “appeal in
disguise”. - It is further submitted that the appellants cannot be permitted to re-
agitate and reargue the contentions that have already been adjudicated upon
by the Court. The appellants on the date of passing of the impugned order
sought the securitization of the shop which was not permitted by this Court.
Therefore, the review petition is not maintainable since the same relief was
sought during the course of the argument on stay application and that the
same had been denied by this Court.
Review Pet. 42/2024 in RFA 64/2024 Page 6 of 14 - It is submitted that the power of review can be exercised for
correction of a mistake which is apparent on the face of it and not to
substitute the view expressed in the order which under review. - It is submitted that there is no force in the arguments advanced by the
appellants as they have not been able to bring forth any contentions to make
the instant petition amenable to be entertained under the review jurisdiction
of this Court. - In view of the foregoing submissions, the learned counsel submitted
that the instant review petition, being devoid of any merits, is liable to be
dismissed. - Heard the learned counsel appearing on behalf of the parties and
perused the record. - Before delving into the merits of the instant case, it is pertinent to
state the settled position of law with regard to the scope of powers conferred
upon this Court under its review jurisdiction and also to ascertain the extent
of such intervention. - The Hon’ble Supreme Court in Sanjay Kumar Agarwal v. State Tax
Officer (1), 2023 SCC OnLine SC 140, highlighted the underlying principle
for review and stated both the conditions for and against the exercise of
review jurisdiction. The relevant paragraphs are reproduced herein below:
“8. Before adverting to the contentions raised by the learned
counsels for the parties, let us regurgitate the well settled law
on the scope of review as contemplated in Order XLVII of the
Supreme Court Rules read with Order XLVII of CPC.
Review Pet. 42/2024 in RFA 64/2024 Page 7 of 14 - In the words of Krishna Iyer J., (as His Lordship then was)
“a plea of review, unless the first judicial view is manifestly
distorted, is like asking for the Moon. A forensic defeat cannot
be avenged by an invitation to have a second look, hopeful of
discovery of flaws and reversal of result……… A review in the
Counsel’s mentation cannot repair the verdict once given. So,
the law laid down must rest in peace.” - It is also well settled that a party is not entitled to seek a
review of a judgment delivered by this Court merely for the
purpose of a rehearing and a fresh decision of the case. The
normal principle is that a judgment pronounced by the Court is
final, and departure from that principle is justified only when
circumstances of a substantial and compelling character make
it necessary to do so. - In Parsion Devi v. Sumitri Devi, this Court made very
pivotal observations:—
“9. Under Order 47 Rule 1 CPC 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 CPC. In exercise
of the jurisdiction under Order 47 Rule 1 CPC 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.” - Again, in Shanti Conductors Private Limited v. Assam State
Electricity Board, a three Judge Bench of this Court
following Parsion Devi v. Sumitri Devi (supra) dismissed the
review petitions holding that the scope of review is limited and
under the guise of review, the petitioner cannot be permitted to
reagitate and reargue the questions which have already been
addressed and decided.
Review Pet. 42/2024 in RFA 64/2024 Page 8 of 14 - Recently, in Shri Ram Sahu (Dead) Through Legal
Representatives v. Vinod Kumar Rawat, this Court restated the
law with regard to the scope of review under Section 114 read
with Order XLVII of CPC. - In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos.
8345-8346 of 2018 (Arun Dev Upadhyaya v. Integrated Sales
Service Limited), this Court reiterated the law and held that:—
“15. From the above, it is evident that a power to review
cannot be exercised as an appellate power and has to be
strictly confined to the scope and ambit of Order XLVII
Rule 1CPC. An error on the face of record must be such an
error which, mere looking at the record should strike and
it should not require any long-drawn process of reasoning
on the points where there may conceivably be two
opinions.” - It is very pertinent to note that recently the Constitution
Bench in Beghar Foundation v. Justice K.S. Puttaswamy
(Retired), held that even the change in law or subsequent
decision/judgment of co-ordinate Bench or larger Bench by
itself cannot be regarded as a ground for review. - The gist of the afore-stated decisions is that:—
(i) A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling character
make it necessary to do so.
(iii) 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 record justifying the
court to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule
1 CPC, it is not permissible for an erroneous decision to
be “reheard and corrected.”
Review Pet. 42/2024 in RFA 64/2024 Page 9 of 14
(v) A Review Petition has a limited purpose and cannot be
allowed to be “an appeal in disguise.”
(vi) Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which
have already been addressed and decided.
(vii) An error on the face of record must be such an error
which, mere looking at the record should strike and it
should not require any long-drawn process of reasoning
on the points where there may conceivably be two
opinions.
(viii) Even the change in law or subsequent
decision/judgment of a co-ordinate or larger Bench by
itself cannot be regarded as a ground for review.” - In this backdrop, this Court is of the view that a review petition is to
be exercised sparingly and should not be allowed to be an appeal in disguise.
Since the scope under the review jurisdiction is limited, the appellants
cannot be permitted to re-agitate and reargue the questions already addressed
and adjudicated upon under the guise of review. - For a High Court to exercise its power of review there must be an
error/mistake apparent on the face of the record. An error which is
highlighted by way of reasoning to such effect is not an error apparent on the
face of it and hence, jurisdiction under review may not be exercised. The
High Court is conferred with powers of review which is distinct from that of
an appellate forum. The said power is neither the inherent power of this
Court, nor is the review a means for covert appeal. - It is the case of the appellants that the appellants are financially
disabled to deposit the decretal amount and by way of the instant review
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petition it is submitted before this Court that the appellant’s son-in-law is
willing to advance a loan for a sum of Rs.20 lakhs. Lastly, the appellants
contend that this Court may permit them to securitize the shop before this
Court. - In rival submissions, the respondent submitted that new facts cannot
be adjudicated by the Court in a review petition. Moreover, re- hearing of
the matter is impermissible and the instant revision petition is an appeal in
the garb of a revision petition. - The relevant portion of the said impugned order is reproduced herein
below:
“6. Qua CM APPL. No.4651/2024 seeking interim relief, in
reply to a specific Court query during the course of
proceedings, the learned counsel appearing on behalf of the
appellant submitted that he is not able to deposit the decretal
amount. - In terms of orders dated 9th January, 2024 and 19th January,
2024, and the response to the specific Court query, I am not
inclined to grant any interim relief, at this stage.” - Upon perusal of the impugned order, the order dated 9th January, 2024
passed by the learned Additional District Judge categorically mentions that
the appellants have refused to pay the decretal amount. Further, as per order
dated 19th January, 2024, by the learned Additional District Judge appointed
the Court Auctioneer for auction/sale of the attached suit property.
Moreover, this Court during the course of arguments asked the appellant
whether the appellant will deposit the decretal amount with this Court. The
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appellant submitted to this effect that the appellant are not in a capacity to
deposit the decretal amount. - Therefore, in terms of the orders dated 9th January, 2024, and 19th
January, 2024, passed by the learned Additional District Judge as well as this
Court query’s during the proceedings, this Court was not inclined to grant
any interim relief to the appellant at that particular stage. - Now adverting to the instant review petition.
- During the course of arguments, the appellants placed their reliance
upon the case titled as Sihor Nagar Palika Bureau v. Bhabhlubhai
Virabhai & Co., (2005) 4 SCC 1 in support of contention with regards to
securitisation of the Shop. The relevant portion is reproduced herein below:
“6. Order 41 Rule 1(3) CPC provides that in an appeal against
a decree for payment of amount the appellant shall, within the
time permitted by the appellate court, deposit the amount
disputed in the appeal or furnish such security in respect
thereof as the court may think fit. Under Order 41 Rule 5(5), a
deposit or security, as abovesaid, is a condition precedent for
an order by the appellate court staying the execution of the
decree. A bare reading of the two provisions referred to
hereinabove, shows a discretion having been conferred on the
appellate court to direct either deposit of the amount disputed
in the appeal or to permit such security in respect thereof being
furnished as the appellate court may think fit. Needless to say
that the discretion is to be exercised judicially and not
arbitrarily depending on the facts and circumstances of a given
case. Ordinarily, execution of a money decree is not stayed
inasmuch as satisfaction of money decree does not amount to
irreparable injury and in the event of the appeal being allowed,
the remedy of restitution is always available to the successful
Review Pet. 42/2024 in RFA 64/2024 Page 12 of 14
party. Still the power is there, of course a discretionary power,
and is meant to be exercised in appropriate cases. - In the facts and circumstances of the present case and having
taken into consideration the respective submissions made by the
learned counsel for the parties in very many details, we are
satisfied to hold that the High Court ought to have permitted
furnishing of security instead of insisting on deposit in cash of
the amount as directed by the High Court. It is not the case of
the respondent that in the event of the appeal being dismissed
the decretal amount may not be recovered from the appellant.
On the other hand, the appellant has made out a prima facie
strong case for the hearing of the appeal on its merits and
further a case that public interest would be better served by the
amount being retained by the appellant during the pendency of
the appeal. While making these observations, we should not be
understood as having made any observation touching the merits
of the case amounting to prejudging any of the issues arising
for decision in the appeal and ex abundanti cautela we clarify
that the appeal shall be heard by the High Court on its own
merits uninfluenced by anything said in this order. The
appellant has already furnished security of immovable property
to the satisfaction of the trial court pursuant to the order dated
30-1-2004 passed by this Court.” - Upon perusal of the above stated judgement it can be fairly summed
with regards to staying the execution of the decree that, the High Court is
conferred upon discretionary powers which shall be exercised as per the
facts and circumstances of each case wherein the Court can direct
securitization in any form and shall not insist only on depositing the decretal
amount in the form of cash. - With respect to the above reasoning this Court is of the view that the
reasoning of the Hon’ble Supreme Court cannot be relied upon in the instant
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review petition since, under a review petition there is very limited scope and
the power of review can be exercised only for correction of a view and not
for substitution of the view expressed by the Court in the impugned order.
Hence, this Court cannot appreciate the law as laid down by the Hon’ble
Supreme Court in the aforesaid judgment since, it falls outside the
jurisdiction of this Court while adjudicating upon a review petition. - Therefore, advertence on merits of the impugned order falls under the
jurisdiction of the appellate Court and this Court cannot act as a Court of
appeal under its review jurisdiction. - In view of the aforesaid discussion, this Court is of the view that the
appellants have not been able to show any fundamental error on the face of
record that might cause prejudice to their case, hence, a case for review is
not made out by the appellants. It is further observed that the appellants
have, by way of the instant review petition, sought to rebut the arguments
already addressed before this Court in the impugned order as well as it
sought that the new fact which arose after passing the impugned order be
adjudicated upon by this Court under a review petition, which is against the
settled position of law with regard to the grounds for preferring a review
petition. - Accordingly, this Court is of the view that the instant review petition
is liable to be dismissed since there is no material error manifested on the
face of the impugned order.
Review Pet. 42/2024 in RFA 64/2024 Page 14 of 14 - Therefore, this Court does not find any merit in the instant review
petition. Accordingly, the instant revision stands dismissed, along with
pending applications, if any.