1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. MISC. CIVIL APPLICATION NOS. 338/2009 & ST.NO.8218/2008. ....... MISC. CIVIL APPLICATION NO. 338 OF 2009 (FOR REVIEW) IN SECOND APPEAL NO.205 OF 1995. WITH MISC. CIVIL APPLICATION St. NO. 8218 OF 2008 (FOR REVIEW) IN SECOND APPEAL NO.206 OF 1995. Badarillal Mohanlal Vyas. ....APPLICANT. VERSUS 1.Jawaharlal Dhanraj Pandya and others. ....NON-APPLICANTS. ----------------------------------- Mr. M.G. Bhangde, Senior Advocate with Mr. V.V. Bhangde, Advocate for Applicant. ------------------------------------ CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 26, 2009. ORAL ORDER. 1. The Respondent no.2 in Second Appeal Nos. 205 and 206 of 1995 decided on 10.03.2008 has filed these two Review Applications. I have heard Senior Advocate Shri M.G. Bhangde, with Advocate Shri V.V. 2 Bhangde, for review applicants. 2. After mentioning the facts, learned Senior Advocate has contended that the order dated 10.12.1985 passed by the Civil Judge, Senior Division, Amravati did not finally decide the controversy and the judgment debtor was expected to obtain possession in separate proceedings or suit. It is therefore, argued that the application of mind by this Court in paragraph no.21 of the judgment is incorrect. It is stated that when the controversy was not decided finally, finding cannot operate as res judicata. The learned Senior Advocate has by inviting attention to paragraph no.11 of the judgment, contended that the issue was specifically raised and the consideration thereof by this Court on merits is also incorrect. He contends that it is vitiated by error apparent on the face of record. His effort is to demonstrate that the entitlement of review applicant flowing from 1983 auction has not been heard and finally decided. Reliance has been placed upon the judgment of Hon'ble Apex Court in the matter of Pandurang Ramchandra Mandlik .vrs. Shantibai Ramchandra Ghatge and others (1989 Supp. [2] SCC 627), particularly paragraph no.19 for this purpose. It is further stated that when issue is not finally decided, the finding does not operate as res judicata and support of taken from the judgment in the case of Ferro Alloys Corporation Ltd. .vrs. Union of India and others ((1999) 4 3 SCC 149). The judgment in the case of Parsottam Gir .vrs. Narbada Gir (I.L.R. Allahabad Series, 1899 (XXI) 505) is pressed into service as a more direct ruling clinching the controversy. 3. Perusal of the judgment delivered in Second Appeals show that in paragraph no.22 this Court has considered the judgment of Hon'ble Apex Court in the case of Shikharchand Jain .vrs. Digamber Jain (Air 1974 SC 1178), to note that it is open to Court including the Court of appeal to take notice of subsequent events and afford relief to parties in changed circumstances. It is also observed that as per the order dated 17.09.1984 delivered in Regular Civil Appeal No. 297/1992, the auction dated 21.07.1980 or right flowing therefrom should have been pointed by the review applicant when Regular Civil Suit No. 61/1979 was very much pending, as preliminary decree therein was passed on 20.08.1980. It is also observed that even if, reasoning in the order is held to be incorrect, the finding has attained finality and it was between the parties. It is further observed that when 1983 auction was held neither present review applicant nor the appellants in Second Appeal were in possession. This Court found that mere holding of auction could not have terminated lease in favour of appellants and in any case the said question was not answered by any of the Courts below, when by final judgment and decree in Regular 4 Civil Suit No. 61/1979, both the appellants were held entitled to possession. This Court has found that they were entitled and were in possession even on 21.07.1980 and to continue in possession, till they were dispossessed or evicted in accordance with law. In this background, it has been observed that the entitlement to claim possession on the basis of 1983 auction by the present applicant was therefore very relevant during proceedings instituted for execution of decree and applicant unsuccessfully made attempt to raise that point. The accrual of right to possession in favour of the appellants was a relevant and significant change which occurred during pendency of the suit, even before passing of the preliminary decree. In 1983 success of applicant did not in any way add to that loss of legal right. This Court has then considered the provisions of Order XXI and Section 47 as also two judgments of Hon'ble Apex Court reported in the case of Dhurandhar Singh .vrs. Jai Prakash University, (AIR 2001 SC 2552) and in the case of Harnandrai Badridas .vrs. Debiduta Bhagwati Prasad (AIR 1973 SC 2423), to conclude that the effect of auction sales in 1980 or in 1983 on appellants or the status said auction conferred upon the present applicant, was very relevant and applicant who was party to the suit therefore, ought to have pointed out such change in the nature of entitlement of appellant. In paragraph no.27, this Court noticed that both the Courts below acted erroneously in holding that aspect of 1983 auction 5 or its implication were not relevant in previous litigation between the parties. Thus this Court has found that the review applicant ought to have opposed delivery of possession to appellant before it in Civil Suit No. 61/1979 itself. This Court further found that the same therefore were not relevant in subsequent suit. In view of this finding, it is apparent that contention of learned Senior Advocate about the opportunity given by the earlier Court or then erroneous finding reached by this Court, is misconceived. This Court has considered the opportunity granted and found that the review applicant had failed to point out relevance of subsequent changes in Civil Suit No. 61/1979. The orders of Courts below even if presumed to be incorrect, operate as res judicata. Similarly, the effect of those orders is also evaluated by this Court and a finding has been delivered. 4. It is not the case, that objection raised by the review applicant was not considered by the courts during pendency of the Regular Civil Suit No. 61/1979. The objection was considered and rejected. The applicant therefore, failed to obtain any relief on the strength of 1980 or 1983 auction and the said finding attained finality. Reliance upon the judgment of Hon'ble Apex Court in Ferro Allows Corporation Ltd. (supra), to urge that the issue was not finally heard and decided, is therefore misconceived 6 in present circumstances. The reliance upon the judgment in the case of Parsottam Gir .vrs. Narbada Gir (supra), is misconceived, because here this Court has found that change in position sought to be pressed into service in subsequent suit was relevant only in Regular Civil Suit No. 61/1979. For the same reason, reliance upon the judgment in the case of Pandurang Ramchandra Mandlik .vrs. Shantibai Ramchandra Ghatge and others (supra), is again misconceived, because the entitlement of review applicant to claim possession or then to oppose delivery of possession to appellants was directly and specifically in issue when preliminary decree was sought to be executed in Civil Suit No.61/1979. 5. It is apparent that, this Court has considered the arguments advanced and in the light of law laid down has answered the substantial question of law formulated in the Second Appeals. There cannot be any re- hearing on those substantial questions again under the guise of review. 6. I therefore, find that no case is made out warranting any interference. Both the applications for review are therefore, rejected, however, in the circumstances of the case there shall be no order as to cost. JUDGE Rgd.