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Civil Review Petition No. 34‑R of 1984, decided on 5th March, 1986.
(On review from the judgment of this Court, dated 17‑6‑1984, in Civil Appeal 223 of 1977).
‑‑‑Art. 188‑‑Supreme Court Rules, 1980, O.XXVI, r. 1‑‑Review‑‑Ground for‑‑Inaccuracy pointed out in narration of facts in the judgment not material for decision of appeal does not constitute error apparent on record so as to furnish ground for review.
‑‑‑Art. 188‑‑Supreme Court Rules, 1980, O. XXVI, r. 1‑‑Reivew‑‑Ground for‑‑New plea which was not taken at time of main appeal nor noticed in leave granting order as such, could not be considered at stage of review.
Ch. Khalilur Rehman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.
Ch. M. Aslam Chatta, Advocate‑on‑Record for Respondent
Date of hearing: 5th March, 1986.
‑This is a petition for review of this Court's judgment, dated 17th June, 1984, in Civil Appeal No.223 of 1977.
2. The first grievance of the petitioner is that while narrating the facts in the judgment it has been observed that Ladha, the original owner, redeemed the mortgage in favour of the petitioner, before alienating the land in his favour. According to the learned counsel, this is not correct even according to the averments made in the plaint. The actual position according to the learned counsel was that the mortgage in favour of the petitioner was not redeemed by Ladha, but as the latter had sold the equity of redemption in his favour, the mortgage was extinguished. It was in order to bring this fact on the revenue record that Mutation No. 1517, dated 6th June, 1970 was attested.
3. Learned counsel concedes that this fact was not germane or relevant to the issue determined by the judgment in appeal. But according to him it is liable to expose the petitioner to further litigation. On the sale being declared as invalid, the petitioner, according to the learned counsel cannot be deprived of his mortgagee's rights, which automatically would be restored with the disappearance of the sale in his favour.
4. Since the inaccuracy pointed out by the learned counsel in the narration of facts was not material for the decision of the appeal, it does not constitute an error apparent on the record so as to furnish ground for review. We may only clarify that the main judgment determined the question of the validity of sale made by Ladha in favour of the petitioner after he had already gifted his rights in favour of the respondent. No issue with regard to the mortgagee's rights of the plaintiff was raised and determined in the main judgment.
5. It was next argued that by virtue of section 42 of the Transfer of the Property Act, Ladha by transferring the land subsequent to the gift in favour of the respondent by way of sale must be deemed to have revoked the gift. This is an entirely new plea not taken at the time of main appeal nor noticed in the leave granting order, as such cannot be considered at the stage of review. In any case as the counsel conceded that this question can be resolved with reference to the delivery of possession under the gift, it is not a pure question of law which could not have been allowed even at the hearing of the main appeal.
6. In the result, with the aforesaid observations this review is dismissed.
M. I. Petition dismissed.
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