IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1166 of 2008 RAM PRASAD Versus RAJENDRA MISTRI & ORS ----------- 3 21/8/2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order refusing to entertain the application of the petitioner for review of a judgment and decree passed way back some 24 years was rightly rejected. It has to be taken into account that Title partition susit no. 120 of 1983/ 116 of 1984 filed by the plaintiffs, opposite parties was decreed by the judgment dated 10.12.1984 on contest by the defendant petitioner and the same become final between the parties in absence of any appeal preferred by the defendant, petitioner – judgment debtor. As a matter of fact, on the basis of the preliminary decree drawn the steps for preparation of final decree were also taken and the final decree was also prepared on 7.6.2000. The decree- holders as a matter of fact had also sought to execute the decree by filing Title Execution Case no. 2 of 2003 and after all these things events had taken place brining almost an end to a litigation of quarter century old, an ingenious attempt was made on behalf of the defendant, petitioner, the judgment debtor by filing review application vide Misc. Case No. 11 of 2007. One must take note of such ingenious attempt on the part of the petitioners which gets 2 exposed from the following averments made in paragraph nos. 11 to 14 of the civil revision application which reads as follows:- 11. That the petitioner/defendant no.5 has already raised in written statement of T.S. No. 120/1983 that the plaintiff has already mortgaged the share of Gulab Mistry in plot No. 708, Tauzi no. 6181 and the mortgage was redeemed by Ram Prasad, the petitioner/defendant no.5 and due to such reason the said mortgage property of plot no. 708 is self acquired property of defendant no.5/ the petitioner and the same may not be partitioned among the sons of Gulab Mistry as they have already lost their right, title and interest in the suit property. 12. That due to negligence of the conducting lawyer the said important evidence has not been produced at the time of hearing of T.S. 120 of 1983/ 116 of 1984 as the conducting lawyer never correctly advised the petitioner to obtain the certified copy of mortgage deed as to lawyer was already informed that the original document has already been stolen by the opposite party no.1/ plaintiff with help of other sons of Late Gulab Mistry. 13. That the conducting lawyer always kept the petitioner in dark about correct position of the case and never advised to file appeal or review just after passing judgment dated 10.12.84 and preliminary decree dated 21.12.84 passed in T.S. No. 120 of 1983/ 116 of 1984, the cause best known to him. 14. That the vital point was not 3 placed before the learned court at the time of trial of the case or at the time of passing the judgment although the point has already been mentioned in the written statement. It was in this background that the defendant, petitioners had in fact raised the following grounds for seeking review :- (a) For that the learned court should have to frame issue whether the plaintiff has given the share of Late Gulab Mistry in mortgage or whether the Defendant no.5/ petitioner has redeemed the said property by paying Rs. 900/- including interest. (b) For that the learned court should have relied upon the oral evidence according to the pleadings of Defendant no.5. (c) For that the learned court do not come within the issue amount to an error apparent on face of record. (d) For that the petitioner/ Defendant no.5 was prevented to file the said mortgage deed as the said document was stolen by the plaintiff/ opposite party no.1 and his brothers. 4 (e) For that the petitioner/ Defendant no.5 could not obtain the said Mortgage deed at the time of hearing of the suit without an exercise of due diligence which were not within the reach of petitioner/ Defendant no.5. (f) For that the error apparent on the face of record is not limited to errors of fact but extends to error of law as well. ( Pathrase Vrs. Kuttan AIR 1969 Ker. 186 ). (g) For that the learned Court should have held that the property mortgaged by plaintiff/ opposite party no.1 and his brother is the exclusive property of petitioner/ Defendant no.5 as the same was redeemed by him. In the opinion of this Court, none of the aforementioned grounds could be one within the parameters and scope of order 47 Rule 1 of the C.P.C. Mr. Yogesh Chandra Verma, learned Senior counsel, however, has stressed that the petitioner had discovered certain revealing facts from a certified copy of the mortgage deed which became 5 available only on 21.8.2007 and therefore that by itself was a good ground for exercise of due diligence, in as much as, such document was earlier not within the reach of the petitioner. Mr. Verma in this context had referred to paragraph nos. 9 to 11 of the review application which reads as follows:- 9. That the Defefant no.5/ petitioner at the time of hearing of the Suit could not filed the said mortgage deed which was redeemed by him as the same was stolen by the plaintiff/ opposite party no.1 and his brothers. 10. That the certified copy of said documents was obtained on 21.8.07 after exercise of due diligence which were not within the reach of this petitioner at the time of hearing and the impugned judgment was passed on 10th December 1984 with seal and signature of Addl. Sub.Judge Sri Dhananjay Prasad Singh which followed by a preliminary decree dated 21.12.1984 and lateron the Final decree was prepared on 7.6.2000 by the learned Court of Sub. Judge VI. 11. That the Defendant no.5/ petitioner adduced oral evidence on his behalf about the said mortgage which was given by the plaintiff/ opposite party no.1 alongwith his brother to one Mostt. Chameliaya Devi W/O Late Munilal Tanti which was redeemed by him from the mortgages by paying Rs.900/- rupees including interest. But the learned Court has not considered and passed and the judgment on 10.12.1984 followed by preliminary decree dated 21.12.1984 and lateron final decree was prepared on 6 7.6.2007. In the opinion of this Court such a plea of the defendant, petitioner is also absolutely misconceived. It is not the case of the defendant, petitioner that they were not aware of the mortgage deed or that they could not have obtained certified copy of the deed earlier. The aforesaid plea of discovery of mortgaged deed in the year 2007 and obtaining the certified copy on 21.8.2007 also gets exposed from the averment made in paragraph 6 of the review application wherein it was admitted that the defendant, petitioner was aware of existence of such mortgaged deed even at the time of filing of their written statement in the year 1983-84. Paragraph 6 of the review application in this regard reads as follows: “That it was also stated by this petitioner/ defendant no.5 in W.S. that the sons of Gulab Mistry / including the plaintiff/ opposite party no.1 had given mortgage of half share in the house to one Munilal Tanti and this mortgage was redeemed by this Defendant after payment of Principal including interest in total Rs. 900/- after receiving the said amount the mortgages returned the mortgage deed in the hand of this petitioner Defendant no.5, later on this Mortgage deed including other important papers were stolen away by the plaintiff/ opposite party no.1 and his brothers for which necessary information was given to P.S. Kotwali Munger and it was stated in W.S. that the heavy expenditure incurred in Saving Joint properties be adjusted at the time of partition.” 7 Crucial question, therefore, would be whether the petitioner was not aware of the mortgage deed or could they have not obtained certified copy of the mortgage deed during the pendency of the suit itself which he ultimately did only after 23 years of the judgment and decree. It is, thus, apparent that whatever plea was sought to be taken by the defendant, petitioner in his review application was an after thought and an attempt to assail the correctness of the findings of the judgment and decree of the year 1984 on merits. By now it is well settled that the provisions of appeal and provisions of review travel in two different directions; a party to the proceeding while assailing a finding on merits has to go in appeal, but in order to seek review he has to establish that such findings suffer from error apparent on face of record. Such records may be either already there or they may be discovered subsequently by way of due diligence being new and important matter. Added to it, it is not only discovery of facts that entitles a party to go for review but in fact he has no satisfy that such discovery of a new and important matter was not within his knowledge when the decree was passed. Here in this case the defendant, petitioner was all along aware of the mortgage deed and in fact he had taken a specific plea in the written statement to this effect. Therefore, if he did not choose to take steps for production of 8 mortgage deed by way adducing it in the evidence in course of hearing of the suit, he cannot now seek review on the ground that their lawyer had misconducted or after theft of the mortgage deed he had filed an application or he could ultimately get the certified copy of the stolen mortgage deed only after 24 years. It is thus plain and simple that after the defendant, petitioner found it difficult to resist preparation of final decree and execution proceedings levied by the decree holders, plaintiffs opposite parties, he had adopted this delaying tactics by filing review application on wholly frivolous grounds impermissible within the scope of Order 47 Rule 1 of the C.P.C. This Court, therefore is satisfied that the review application filed by the petitioner was wholly malafide and frivolous and has been correctly rejected by the impugned order. That being so, this Court would dismiss this civil revision application with exemplary cost of Rs. 10,000/- to be realized from the petitioner for its being paid to the Plaintiff-opposite party no.1 within a period of one month from the date of receipt/ production of a copy of this order. In case the petitioner does not pay the amount of cost to the plaintiff-opposite party no. 1 within the aforementioned period, the same will be realized by the plaintiff/opposite party no.1 through the process of the court. 9 The Court below is also directed to ensure that the final decree and execution proceedings is completed and disposed of within a period of three months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions this Civil Revision application is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar