IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 RP.No. 884 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7889/2010 Dated 30/06/2010 .................... REVIEW PETITIONER: PETITIONER -------------------------------- U.UDAYABHANU, S/O. ANJANAVATHI, UNIKKAL HOUSE, NEDUVA, PARIYAPURAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT: RESPONDENT ------------------------- SAVITHRI, W/O. RAMAKRISHNAN, KEERTHANAM HOUSE, NANGADATH PEEDIKA P.O., TEMPLE GATE, THALASSERI, KANNUR DISTRICT, PIN-670 101. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.P.No.884 of 2010 --------------------------------------- Dated this 13th day of October, 2010 ORDER Review of judgment dated 30-06-2010 in W.P(C).No.7889 of 2010 is sought on the ground that relevant documents were not brought to the notice of this court while disposing of the writ petition, this court only considered the legal issues involved and not the question whether by the amendment sought for and obtained by the respondent there is change of the identity of the property itself. Learned counsel for petitioner states that by the change in amsom and desom brought about by the amendment vast difference has occurred in that, in the resurvey number that is brought out by amendment there is a separate and distinct property in Pariyapuram amsom and desom which is brought into the execution petition by the impugned amendment. Learned counsel has taken me through the descriptions of property in the plaint and final decree schedules and descriptions of property comprised in R.S.No.34/1 of Pariyapuram amsom and desom. 2. After several round of litigation this matter is again coming before me in the form of review. Respondent and others filed O.S.No.44 of 1973 for partition of the properties stated in the R.P.No.884 of 2010 : 2 : plaint schedule of course, describing the amsom and desom where the properties are situate as Rayirimangalam amsom and Ernakaranallur desom and the old and resurvey numbers as 26/3 and 34/1. Boundaries of the two items are also given in the plaint schedule. Petitioner was defendant No.11 in the suit. His father, according to respondent was defendant No.30. The court passed preliminary and final decrees for partition which was put into execution on the request of respondent/defendant No.12. Several obstacles came in the course of litigation as is usually said about the process of execution in this country. Petitioner filed E.A.No.328 of 2006 claiming independent right over the decree schedule property. Executing court allowed that application. Respondent challenged that order in W.P.(C).No.3347 of 2007 in this court. This court allowed the writ petition observing that petitioner cannot put up independent claim over the properties since his father, defendant No.30 had not raised any of such contention and that claim of petitioner is only under defendant No.30. E.A.No.328 of 2006 was dismissed. Further, this court directed that plots M1 to M4 (both inclusive) in Ext.C, plan appended to the final decree are to be allotted to the respondent/defendant No.12. Respondent was under the hope that in the light of the judgment of this court he will be able to reap the R.P.No.884 of 2010 : 3 : fruits of the litigation. On his request Amin of the court below was deputed to effect delivery of plots M1 to M4 in Ext.C5, plan to the petitioner. The Amin then learned that there is some discrepancy regarding amsom and desom of properties mentioned in the decree schedule and sought to be delivered over. The discrepancy he found was that though in the plaint schedule properties are stated to be situated in Rayirimangalam amsom and Ernakaranallur desom, at spot it was found to be within Pariyapuram amsom and desom. Of course, petitioner has a contention that the Amin had not made any report in that way to the executing court. Either way, it is not disputed that the executing court called for a report from the Tahsildar concerned and the Tahsildar reported that change in amsom and desom occurred due to reorganisation of Taluks. Based on that report, respondent filed an application to amend the execution petition to the extent of correcting amsom and desom as reported by the Tahsildar. The Tahsildar was examined as witness. That application though opposed by petitioner was allowed by the executing court which was challenged in this court in W.P(C).No.7889 of 2010, petitioner urging that without amending the plaint schedule, preliminary and final decree schedules there was no question of amending the schedule in the execution petition alone, there was no power for the court to R.P.No.884 of 2010 : 4 : amend the execution petition under Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”) and even if amendment to the execution petition was allowed, that would not solve the problem. A contention was also raised in the memorandum of writ petition that executing court had not gone through Ext.P2, (in W.P (C).No.7889 of 2010), counter statement filed by petitioner to the application for execution where an objection was raised that amendment if allowed would change identity of the property. This court after hearing both sides dismissed the writ petition by judgment dated 30-06-2010 which is sought to be reviewed, the main ground for review being that the amendment if allowed would affect identity of the property which aspect was not considered by this court. It is in this connection that learned counsel for petitioner has raised the argument which I have adverted to above. 3. Before going into the question, I must bear in mind the scope for review under Order XLVII of Rule I of the Code. A review is permissible when from the discovery of a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account some mistake or error apparent on the face of the record, or for any other sufficient reason. So far as the last expression R.P.No.884 of 2010 : 5 : “any other sufficient reason” is concerned, binding judicial pronouncements inform me that the expression must be read as ejusdem generis, general words following the specific words mentioned (in Order XLVII Rule 1 of the Code). Hence “any other sufficient reason” referred to in Order XLVII, Rule I of the Code must be similar to other grounds mentioned therein. It is also stated on numerous occasions by binding authorities that a review is not an opportunity for a rehearing or a substitute for an appeal and that review court is concerned only with the grounds stated in Rule I of Order XLVII of the Code. 4. The grounds which are now urged in the petition for review were raised before the executing court and found against by the impugned order which was under challenge in W.P(C).No.7889 of 2010. I have gone through the memorandum of writ petition in W.P(C).No.7889 of 2010 and find that challenge was to the legal issues involved as to whether it was within the power of executing court to order amendment of execution petition under Order VI Rule 17 of the Code whether, without amending the plaint schedule and preliminary and final decree schedules it was possible for the court to allow amendment of the execution petition schedule alone. True, there was also a contention that trial court had not gone through the contentions raised in (Ext.P2) counter statement to the R.P.No.884 of 2010 : 6 : application for amendment. But, writ petition was argued on the premise that there is no dispute regarding identity of property which fact I have referred to in the judgment dated 30-06-2010. No argument was advanced before me that there is change of identity of property on account of amendment permitted by the executing court. Hence, it is not open to the petitioner to now come up with a review and urge grounds which were not urged before me while disposing of W.P(C).No.7889 of 2010. I also stated that by the amendment only change brought about is that the amsom and desom originally stated in the plaint, preliminary and final decree schedules as Rayirimangalam amsom and Ernakaranallur desom was corrected as Pariyapuram amsom and desom which was based on the report and evidence of the Tahsildar that the change occurred due to re-organisation of Taluks. I also pointed out that there was no change in identity of the property. Learned counsel for respondent has pointed out that what was sought to be corrected by amendment was only amsom and desom which is in the form of a clarification in view of the report and evidence of Tahsildar and that boundary descriptions in the plaint, preliminary and final decree schedules remain as such. In the light of that, merely because there was a change in the amsom and desom, I pointed out in the judgment sought to be reviewed, was R.P.No.884 of 2010 : 7 : only in the form of a clarification. I do not find any merit or substance in the application, nor do I find bonafides since every attempt was being made to stall the process of execution on one ground or other. I must also bear in mind that in respect of the same property petitioner had made an independent claim which was found against by this court in the judgment in W.P(C). No.33447 of 2007. In the light of the above petitioner cannot succeed in this application for review of judgment dated 30-06-2010 either on point of law or on fact. If the judgment in W.P(C).No.33447 of 2007 suffers from any illegality, remedy if any is elsewhere. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-