IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RP.No. 593 of 2011() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN CRP.NO.538/2008 Dated 21/01/2011 .................... REVIEW PETITIONER(S): REVISION PETITIONERS: -------------------------------------------------------------------------- 1. VASUMATHY, W/O. LATE MADHAVAN, CHENNACKAL CHIRA, VADACKKEL MURI, PUNNAPRA VILLAGE. 2. VALSALA, D/O. LATE MADHAVAN, CHENNACKAL CHIRA, VADACKKEL MURI, PUNNAPRA VILLAGE. 3. VANAJA, D/O. LATE MADHAVAN, CHENNACKAL CHIRA, VADACKKEL MURI, PUNNAPRA VILLAGE. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): RESPONDENT ------------------------------------------------- THANKAPPAN, S/O. LATE AYYAPPAN, RESIDING AT CHENNACKAL CHIRA, VADAKKEL MURI, PUNNAPRA VILLAGE.PIN-688 004 BY ADV.SRI.K.S.HARIHARAPUTHRAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- R.P. No.593 of 2011 in C.R.P.No.538 of 2008 -------------------------------------- Dated this the 17th day of August, 2011. ORDER With respect to 13 cents in survey No.43/9 described as lying within the boundaries mentioned in the plaint schedule but, in the absence of a properly measured plan of the said property, petitioners obtained a decree for recovery of possession of the said property. The trouble started when the decree was put in execution as it is often said that the course of execution in this country is not an easy riding highway and that the plight of the Indian litigant starts in execution. Petitioners filed E.P.No.94 of 1997 for execution of the decree. The decree schedule property was delivered to the petitioners on 18.02.1998. That was followed by the respondent/judgment debtor filing E.A.No.247 of 1998 on 17.3.1998 seeking redelivery of the property. He claimed that what was delivered by the Amin under guise of execution is a portion of the property belonging to him as per Ext.B4, purchase certificate he has obtained from the Land Tribunal. Respondent filed E.A.No.689 of 1998 for appointment of an Advocate Commissioner to identify the properties. That application was allowed as per order dated 08.12.1998 which petitioners challenged in this Court in C.R.P.No.503 of 1999. This Court while confirming the order of appointment of the Advocate Commissioner issued certain directions and disposed of the civil revision by order dated 01.02.2000. Advocate Commissioner with the assistance RP No.593/2011 in CRP No.538/2008 2 of Surveyor identified the properties and submitted report and plan in the executing court in July, 2000. The executing court dismissed E.A.No.247 of 1998 which, respondent challenged in C.R.P.No.2267 of 2001. That revision was allowed and the executing court was directed to identify the properties covered by Ext.A1 (purchase certificate in favour of petitioners). In the meantime, allegedly for the reason that E.A.No.247 of 1998 was missing, respondent filed a fresh application - E.A.No.200 of 2005 requesting the executing court to identify the property in the light of directions issued by this Court in the order in C.R.P.No.2267 of 2001. That application was allowed by the executing court holding that what was delivered to the petitioners as if it is decree schedule property is actually property belonging to the respondent and covered by Ext.B4. Petitioners challenged the said order in this Court in C.R.P.No.538 of 2008. This Court confirmed the order of the executing court. Now, a review of the order dated January 21, 2011 in C.R.P.No.538 of 2008 is prayed for. 2. Learned counsel for petitioners has contended that this Court while disposing of C.R.P.No.538 of 2008 has committed a grave irregularity which is apparent on the face of the record in that this Court was under the impression that as per report and plan submitted by the Advocate Commissioner what was delivered to the petitioners is not the decree schedule property but the property covered by Ext.B4, purchase in favour of respondent. It is argued by learned counsel from the report and plan submitted by the RP No.593/2011 in CRP No.538/2008 3 Advocate Commissioner that there was no scope for a conclusion that the decree schedule property is the property belonging to the respondent as per Ext.B4. In that view of the matter, there is an error apparent on the face of record which is required to be corrected by this Court, it is contended. 3. Learned counsel for respondent has contended that all the contentions which petitioners now raise in support of the request for review had been raised in this Court while hearing C.R.P.No.538 of 2008, were found against and hence there is no scope for a review even if it is assumed that the order is not correct on facts. It is contended that a review is not a substitute for an appeal or an opportunity for a re-hearing of the case. According to the learned counsel, there is no error apparent on the face of record or other circumstances falling under Rule 1 of Order XLVII of the Code of Civil Procedure (for short, “the Code”) justifying a review of the order dated January 21, 2011 in C.R.P.No.538 of 2008. 4. There could be no dispute regarding the scope of a review - that it is to correct an error apparent on the face of record or, when other circumstances referred to under Rule 1 of Order XLVII of the Code are involved. Here, the contention is one of error apparent on the face of record. That expression has been understood as meaning an error which a very look at the order sought to be reviewed would reveal. It has been hold time and again that the error is not apparent on the face of the record if it is necessary to go into the RP No.593/2011 in CRP No.538/2008 4 records at depth. 5. The sheet anchor on which petitioners base their request for review is the report and plan submitted by the Advocate Commissioner and secondly; that respondent has filed E.A.No.200 of 2005 requesting the executing court to identify the property in the light of directions issued by this Court in the order in C.R.P.No.2267 of 2001 when the respondent had already made an application. As regards the latter, it is argued that respondent has proceeded as if the order of this Court in C.R.P.No.2267 of 2001 granted him an executable decree. 6. The first issue concerns identification of the decree schedule property and the property claimed by respondent as per Ext.B4. Though, the decree permitted petitioners to recover possession of the decree schedule property, ie. 13 cents in survey No.431/9 lying within the boundaries mentioned therein, it is not disputed that there was no properly obtained plan on the trial side before the decree was passed. It is the case of respondent that he has a total extent of 32 cents in survey No.431/9/1. The decree schedule property is described as situated on the east and north of the property of respondent. In otherwords, it is not disputed by petitioners also that adjoining the decree schedule property, respondent owns and is in possession of property. 7. Petitioners obtained a decree for recovery of possession and RP No.593/2011 in CRP No.538/2008 5 this Court directed that petitioners can get only the decree schedule property and that it is necessary that the 13 cents mentioned with the respondent's property as boundary has to be located. At the same time, it has to be seen whether the said property takes in any portion of property covered by Ext.B4, purchase property (property belonging to the respondent) and also whether the decree schedule property is mentioned in Ext.A1. There was a direction to measure and locate the properties as aforesaid. It is pursuant to that direction that report and plan were submitted by the Advocate Commissioner. Advocate Commissioner though, at one stage has stated that the 13 cents referred to in the decree schedule is not the property of the respondent, he has further stated that it is revealed that the location of property described as decree schedule is the same as that of property covered by Ext.B4, purchase certificate in favour of the respondent and, on ascertaining whether it is Ext.A1, property which is the decree schedule property it was revealed that as per the report of the Revenue Inspector the said property is situated on the immediate south of property of petitioners but, on the south it is the property in the possession of third parties. The Advocate Commissioner has stated that on locating the property, it was found that location of the decree schedule property is that of the property of respondent covered by Ext.B4. 8. Now the question is whether in the light of the above, there is any error apparent on the face of record in the order dated January 21, 2011 RP No.593/2011 in CRP No.538/2008 6 in C.R.P.No.538 of 2008. This Court referring to the report and plan stated that the plot, CDHE is the property assigned by Madhavan and his mother in favour of respondent and that plot EHOP is the property retained by Madhavan and his mother. It is further stated that going by the report and plan, the property covered by Ext.A1 should be JMPQ. The said observation is sought to be corrected by way of review. 9. I am persuaded to think, there is no error apparent on the face of record. Instead, the finding has been entered based on the report and plan submitted by the Advocate Commissioner which I have referred above. If that finding is not correct, it does not amount to an error apparent on the face of record so that a review under Rule 1 of Order XLVII of the Code is permissible. Assuming that the decision of this Court in C.R.P.No.538 of 2008 is not correct , remedy lies elsewhere and not by a review. Review Petition is dismissed. THOMAS P.JOSEPH, Judge. cks