IMPORTANT POINT
When special leave petition was dismissed in limine without giving any reasons, review petition filed by appellant in High Court would be maintainable and should be decided on merits.

JUDGMENT

A.K. SIKRI, J.

Leave granted.

2) Question of law in both these appeals is identical. However, facts of the Civil appeal arising out of Special Leave Petition (Civil) No. 490 of 2012 are noted for discussion, as in this case, order dated October 19, 2012 has been passed referring the question of law to a larger Bench.

3) Before we advert to the question of law, we deem it appropriate to take stock of seminal facts as the said factual background would make it easier to understand the implication of the issue that arises for determination.

4) Respondent No.1 herein had filed original suit against the appellant on the file of the XXXI Additional City Civil Judge, Bangalore City. It was a money suit for recovery of Rs.1,00,76,630/-along with interest. The City Civil Judge, after trial, dismissed the suit as barred by limitation vide his judgment and decree dated November 11, 2005, even after finding on merits that money was payable by the appellant to respondent No.1. Against this, respondent No.1 preferred first appeal under Section 96 of the Code of Civil Procedure, 1908. This appeal was allowed by the High Court of Karnataka on November 12, 2008 by holding that the suit was filed within the period of limitation. Accordingly, it passed decree of the amount claimed along with interest @ 12% per annum from the date of demand, i.e. July 19, 1994, up to August 03, 1994 and the interest was granted @ 10% per annum from August 04, 1994 till the date of payment. Against this judgment of the High Court, the appellant preferred the special leave petition. This special leave petition was dismissed by this Court on December 04, 2009 with the following order:

"Delay condoned. Special Leave Petition is dismissed.” After the dismissal of the special leave petition, respondent No.1 filed execution petition before the trial court.

5) It may be mentioned at this stage that after the High Court had decreed the suit of respondent No.1, the respondent filed application for rectification of the judgment, which was allowed on October 20, 2010 directing the appellant to pay the decretal amount with interest and costs. This is the subject matter of the execution proceedings.

6) The appellant herein, even after dismissal of the special leave petition, went back to the High Court in the form of review petition seeking review of the judgment dated November 12, 2008 passed by the High Court. It was filed on the premise that the High Court had granted relief which was not even sought for by respondent No.1 in the suit. We may reproduce the precise ground taken in this behalf in the review petition:

"11. The above Review Petition is directed only with regard to the decree portion dated 12.11.2008 passed by this Hon’ble Court in RFA No. 427/2006 as corrected by the order dated 20.10.2010. It reads:

“We direct the plaintiff to recover the amount as claimed at Rs.1,00,76,630/-with interest at the rate of 12% from the date of demand made namely 29.07.1994 till 03.08.1994 and at the rate of 10% from 04.08.1994 till the date of payment on the said sum with costs.”

A perusal of the prayer made in the suit O.S. No. 2808/1997 as extracted in para 2 above shows that the plaintiff has not claimed interest at any particular rate and he has also not prayed the interest from any particular date. He has also not claimed interest at different rates also. Thus the decree passed by this Hon’ble Court in RFA No. 427/2006 is not based on the prayer sought for by the plaintiff in O.S. No. 2808/1997. This mistake appears on the face of the record. Hence the impugned judgment and decree in RFA No. 427/2006 dated 12.11.2008 as corrected on 20.10.2010 is liable to be reviewed and modify the said judgment and decree in terms of the prayer made by the plaintiff in O.S. No. 2808/1997.”

On that basis, it was pleaded that the award of interest from August 04, 1994 is also without jurisdiction since it was not claimed by respondent No.1 in the trial court.

7) This review petition