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Civil Miscellaneous Application No. 354/C of 1963, decided on 2nd April 1963.
O. XLVII, r. 1 --Review‑Sought on ground of compromise between parties subse quent to decision of Court‑Review application, held, outside scope of O. XLVII, r. 1.
O. XXI, r. 2‑Scope-- Decree not yet dram up‑Provisions of rule not attracted.
O. XXIII, r. 3- Compromise subsequent to judgment‑Provisions of rule not applicable.
S. 151‑Inherent powers of Court not exercisable after case has been disposed of --Court not competent to review judgment in exercise of such powers even if decree‑sheet is still to be drawn up.
Gopala Iyengar and others v. Mummachi Reddiar and others A I R 1923 Mad. 392 ; Raja Debi Bakhsh Singh v. Habib Shah 40 1 A 151 ; Karishanaji Vinayak Belapurkar v. Motilal Magandas Gujarati A I R 1929 Bom. 337 and Valji Harji v. Ravishankar Chhaganlal and others A I R 1947 Sind 1 distinguished.
Sher Muhammad and others v. Khuda Bux and another P L D 1961 Lah. 579 ref.
Masud Butt for Petitioner.
A. R. Sheikh for Respondent.
Date of hearing : 2nd April 1963.
This order will dispose of Application No. 354/C of 1963 fled by the plaintiff appellant, Mst. Bashir Begum, as well as two applications filed by the defendant‑respondent, Abdur Rehman, viz. Civil Miscellaneous Nos. 393/C‑63 and 394/C‑63. In Application No. 354/C of 1963, the plaintiff has prayed that the defendant be directed to deposit his share of the non‑judicial stamp paper amounting to Rs. 3,090 for drawing up a decree for the partitioning of the property in suit, namely, Rahman Building, situated on Temple Road, Lahore in accordance with the judgment of this Court dated the 18th April 1962. On a notice of this application being served on the defendant, the latter filed Application No. 393/C of 1963 praying that the judgment delivered by Mr. Justice Bashir Ahmad on the 18th of April 1962, be reviewed for the reason that on the 19th of July 1962; the parties entered into an oral compromise, under which the defendant paid, in the first instance, mesne profit amounting to Rs. 27,907 to the plaintiff in the presence of a Judge of this Court, and also started paying her a sum of Rs. 350 per mensem as her share of the rent of Rahman Building. In Application No. 394/C of 1963, a prayer has been made for condoning the delay in the submission of the review application.
2. A counter‑affidavit has been filed on behalf of the plaintiff Mst. Bashir Begum, who is a sister of Abdur Rahman defendant denying that any compromise was entered into between them on the 19th of duly 1962. Another point made in the counter -affidavit is that the sum of Rs. 350 per mensem being paid by the defendant, Abdur Rahman, is not in full payment of the plaintiff's share of the monthly rent of her portion of the property but it is only on account, to be settled when the accounts are made up between the parties regarding the mesne profits.
3. The first question which falls for determination in this case is whether the judgment delivered by a Judge of this Court on the 18th of April 1962, ordering the partitioning of the property between the parties, can be reviewed on account of a compromise alleged to have been arrived at between the parties subsequent to the decision of the Court. Mr. A. R. Sheikh, the learned counsel for the defendant, Abdur Rahman, has placed reliance on the inherent powers of this Court under section 151 of the Code of Civil Procedure as, in his view, there is no other provision which applies to a situation like the one which has arisen in this case.
4. The main provision for the review of judgment is contained in Order XLVII, rule 1 of the Code of Civil Procedure, which runs as under :‑
"1.‑(1) Any person considering himself aggrieved‑
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, desires to obtain a review of the decree passed or order made against him, may apply for a review of, judgment to the Court which passed the decree or made the order.
(2) . . . . . ."
5. It will be seen that the present case does not fall within the purview of the rule reproduced above. The first part of this rule contemplates the discovery of new matter or evidence which was not within the knowledge of the applicant when the decree was passed or order was made. The second part contemplates the existence of a mistake or error apparent on the face of the record. Both these conditions are missing in this case, for the ground on which the review is sought is alleged to have come into existence subsequent to the passing of the judgment, namely; the compromise entered into between the parties on the 19th of July 1962.
6. Two other provisions of law which are relevant may also be noticed, namely, Order XXI, rule 2, and Order XXIII, rule 3 of the Code of Civil Procedure, Order XXI, rule 2, relating to payment or settlement out of Court would come into play during execution proceedings, which stage has not yet arrived in the present case due to the fact that the decree for the partitioning of the property has not been drawn up. Similarly, Order XXIII, rule 3 does not appear to be applicable for the reason that this rule contemplates an agreement or compromise between the parties before a judgment is pronounced. If the Court orders an agreement or compromise or satisfaction to be recorded, then it is to pass a decree in accordance therewith so far as it relates to the suit. The result, therefore, is that the application for review of the judgment submitted by the defendant is not covered by the express provisions relating to review of judgment viz., Order XLVII, rule 1, nor does it fall within the scope of the provisions of the Code of Civil Procedure relating to the recording of compromise or satisfaction out of Court during the pendency of a suit, or settlement out of Court in execution proceedings.
7. It was contended by Mr. A. R. Sheikh that such being the case, the power of review can be appropriately exercised under section 151 of the Code of Civil Procedure, for the reasons that review of the judgment, so as to bring it in accordance with the compromise effected between the parties, will serve the ends of justice by preventing further litigation between them. On behalf of the plaintiff, Mr. Masood Butt has contended that once the judgment has been pronounced, the decree is to follow in terms of the judgment under section 33 of the Code of Civil Procedure, and, therefore, once the judgment is pronounced the Court ceases to have any jurisdiction to act under section 151 of the Code of Civil Procedure to alter the judgment or to interfere with the decree. According to the learned counsel for the plaintiff, the mere fact that the decree- sheet has not been drawn up and signed in this case makes no difference, as the decree is only a formal expression of the judgment and decision already given by the Court.
8. There does not appear to be any direct authority available on the point which has arisen in this case, namely, whether the judgment can be reviewed in the light of a sub‑sequent compromise between the parties. Mr. A. R. Sheikh referred to Gopala Iyengar and others v. Mummachi Reddiar and others (A I R 1923 Mad. 392) which, however, is not directly applicable in this context, for their Lordships exercised the power of review under Order XLVII, rule I on account of the existence of a circum stance which was already present when the judgment under appeal was passed but was not taken into consideration at that time. The passage on which reliance has been placed by the learned counsel is in the following words :‑
"The decree has not yet been signed and we have no doubt that there is sufficient reason' within the meaning of Order XLVII, rule 1, to review our decision apart from our inherent powers under section 151, Civil Procedure Code."
Their Lordships then went on to say that a Court has power to correct an error obvious on the face of the record before the order has been completed. It will be observed that the scope and application of section 151 of the Code of Civil Procedure were not examined at any length and, therefore, the decision in this case cannot be cited as authority for the view that section 151 of the Code of Civil Procedure can be used to review the judgment in the light of subsequent events such as a compromise between the parties.
9. Reference was also made by Mr. A. R. Sheikh to Raja Debi Bakhsh Singh v. Habib Shah (40 I A 151) whether their Lordships of the Privy Council held that a Court can act in its inherent powers as provided by section 151 of the Code of Civil Procedure to set aside the dismissal of a suit against a plaintiff who had died before hearing of a suit. In that case the suit had been dismissed in default and it was observed that provisions of Order IX, rules 8 and 9 did not apply in those circumstances. This again was a case where 'the circumstance requiring the exercise of inherent powers of the Court was already present when the order dismissing the suit was passed.
10. Reliance was next placed on Krishanaji Vinayak Belapurkar v. Motilal Magandas Gujrati (A I R 1929 Dom. 357), but that again was a case dealing with altogether different circumstances. The trial Court had refused to join a person as a co‑plaintiff, but at the time of drawing up the decree that person was shown as a co‑plaintiff on the strength of decree obtained by him on the basis of a compromise in another suit. It was observed that a Court was competent to amend and modify its decree according to the circumstances as they stood at the time of passing the decree. These observations are clearly relatable to the pro ceedings, during the pendency of the suit and cannot be taken to mean that events which have happened subsequent to the passing of the judgment and decree are to be reflected in that judgment by the process of review.
11. Lastly, reference was made to Valji Harji v. Ravishankar Chhaganlal and others (A I R 1947 Sind 1.) where a Full Bench of the Sind Chief Court held that there being no express provision under Order XXVI or any Order of the Code of Civil Procedure allowing a Court to direct a plaintiff to deposit a further sum after the commission has issued, for Order XXVI, rule 15 relates to a deposit before the commission has been issued, the Court can act in the exercise of its inherent powers under section 151, C. P. C., to order a further sum to be paid to meet the further expenses of the commission after the commission had begun. This case again seems to me to be distinguishable from the instant case for the reason that in that case the question was regarding the continuance of the proceedings in the suit and without the exercise of the inherent powers of the Court it would have become impossible to ensure the execution of the commission.
12. Mr. Masood Butt, the learned counsel for the plaintiff, on the contrary, referred me to Sher Muhammad and others v. Khuda Bux and another (P L D 1961 Lah. 579) in which Shabir Ahmad, J. observed that: "After a Court has disposed of a matter, it ceases to be seized of it, and cannot, therefore, exercise the powers under section 151 which were vested in it for so long as the matter was pending before it." The learned Judge then proceeded to distinguish section 151 from sections 152 and 153 of the Code of Civil Procedure on the ground that the latter two sections make it clear that a Court could exercise certain powers even after a suit had been disposed of. There were several cases before the learned Judge in which he had delivered judgments on the original side and applications had been made for review of the judgments on the ground that certain issues had not been argued but had nevertheless been decided by the learned Judge. His Lordship came to the conclusion that he could act under sections 152 and 153 but not under section 151 of the Code of Civil Procedure. It is not clear from the judgment whether the decrees had been drawn up in the suits or not.
13. It seems to me that, in the first place, section 151 of the Code of Civil Procedure is not to be invoked when there is an express provision in the Code relating to the matter which is sought to be dealt with under section 151, C. P. C. The present application by the defendant, Abdur Rahman, is clearly an application for review of the judgment delivered by this Court on the 18th of April 1962, and if this application is not covered by the express provisions contained in Order XLVII, rule 1, its would merit dismissal on that ground alone. Secondly, the powers conferred under section 151, C. P. C. are not to be exercised once the Court has disposed of the case. In the present case the judgment was delivered on the 18th of April 1962, and under section 33 of the Code of Civil Procedure, a decree is to follow the judgment, and under Order XX, rule 7, the decree has to bear the same date as that of the judgment. The mere fact that the decree has not been drawn up and signed does not mean that the suit is still pending. The suit has been disposed of by judgment dated the 18th of April 1962 and the act of drawing up of the decree is only a formal expression of the judgment of the Court which must follow automatically und‑r section 33 of the Code. For the reasons, I would hold that it is not open to me under section 151 of the Code of Civil Procedure to review the judgment of the 18th of April 1962.
14. Assuming, however, that I had the power to review the judgment in question under the provisions of section 151 of the Code of Civil Procedure, the question still remains whether this is a case in which that power should be exercised. As already stated, the ground urged for review is that there has been an oral compromise between the parties on the 19th of July 1962 in pursuance of which a large sum of money was paid to the plaintiff by the defendant in the presence of a Judge of this Court and also monthly payments of Rs. 350 are being made on account of plaintiff's share of the rent of the building in dispute: In other words the contention is that though the compromise was oral in character it has been implemented by the parties. I have mentioned above that the plaintiff has filed, a counter -affidavit denying the existence of any such oral compromise. It is, therefore, a question for evidence as to whether any such compromise was indeed entered into between the parties. The litigation between the brother and sister started soon after the death of their parents in the year 1941‑42, and at least for the last sixteen years suits have been going on between them, and it was only on the 18th of April 1962, that a final judgment was given ordering that the property known a its "Rahman Building" be partitioned between the two. The only thing needed to be done was the supply of non judicial stamp paper for the drawing up of the final decree of partition, but instead of doing, that new issues have been raised by the defendant, namely, regarding the alleged oral compromise. It seems to me that it will not at all serve the ends of justice to start a fresh inquiry as to whether the alleged oral compromise had or had not come into existence, and then to use the powers given by section 151 of the Code of Civil Procedure to alter the judgment already delivered, on account of something which has happened subsequently. The interests of justice seem to require, in this case, that the litigation between the brother and sister must be brought to close by implementing the judgment and decree which has already been passed between them. Even if, therefore, I had come to the conclusion that it was open to me to act under section 151 of the Code of Civil Procedure, I would have held that this was not a case' where this power should be exercised and the matter re‑opened.
14. The result, therefore, is that Applications C.M. 393/C and 394‑C of 1963, submitted by the defendant, Abdur Rahman, are dismissed, and he is directed to deposit his share of the non -judicial stamp paper within seven days from today. Plaintiff's Application C. M. 354/C of 1963 is accepted accordingly. There will be no order as to costs.
K. B. A. Petition accepted.
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