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2004 Supreme(Gau) 300
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Tinlianthang Vaiphei, J.
Manabendu Das Choudhury
Vs.
State of Tripura and Ors.
CRP No. 46 of 2002
Decided On: 30.04.2004
For Appellant/Petitioner/Plaintiff: D.K. Biswas and S. Lodh, Advs.
For Respondents/Defendant: U.B. Saha and T.D. Majumder, Advs.
The effect of allowing an application for review of a decree is to affect the decree passed, and the decree subsequently passed on review supersedes the original one.
Headnote:
Revision Petition - Code of Civil Procedure - Section 115 - Summary
Fact of the Case:
The petitioner filed a suit for declaration and recovery of money, which was dismissed by the learned Civil Judge. The petitioner appealed and the Court directed the respondents to pay a sum with interest. The respondents filed a review petition which was dismissed. Subsequently, the respondents filed a suit against the petitioner for declaration and recovery of money. The petitioner claimed further interest from the disposal of the First Appeal up to the disposal of the review petition.
Finding of the Court:
The Court found that the order dated 22.6.01 did not amount to a decree confirming the earlier decree already passed. The learned Civil Judge concluded that the order dated 22.6.01 passed in the review petition did not have the effect of modifying or reversing or confirming the decree originally passed until and unless the review petition terminates with the final order passed.
Issues: The main issue was whether the order dated 22.6.01 stood merged with the order dated 5.5.1999 passed in F.A. 77 of 1998 so as to make the period between 5.5.1999 and 22.6.2001 a continuation of the suit.
Ratio Decidendi: The Court applied the legal principle that the effect of allowing an application for review of a decree is to affect the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one.
Final Decision: The revision petition was dismissed as the Court found no merit in the petitioner's claim.
T. Vaiphei, J.
1. This revision petition under Section 115 of the Code of Civil Procedure is directed against the order dated 24.6.2002 passed by the learned Civil Judge (Sr. Division), North Tripura, Dharmanagar in Civil Misc. 19 of 2001 which arose out of Execution case No. Ex. 4(T)/99 whereby the claim of the petitioner for payment of interest @ 12% on the decretal amount with effect from 5.5.1999 to 22.6.01 was rejected.
2. The facts of the case, in a nutshell, are that the petitioner had instituted a suit before the learned Civil Judge, Senior Division for declaration and recovery of money, which was registered as T. S. No. 19 of 1997. By the judgment and decree dated 20.4.1998, learned Civil Judge dismissed the suit. Against the said judgment and decree, the petitioner preferred an appeal before this Court in F.A. 77 of 1998. The Court, by the order dated 5.5.1999, allowed the appeal and directed the respondents to pay a sum of Rs. 3,55,982 along with interest @ 12% per annum from the date of filing of the suit to the date of decree to the petitioner.
3. It appears that the respondents thereafter filed a review petition against the judgment and decree before this Court which was registered was review petition No. 7 of 1999. By the order dated 22.6.2001, this Court dismissed the review petition holding that no sufficient ground was made out for reviewing the judgment and decree impugned therein. It further appears that the respondents, without satisfying the decree, through the Forest Range Officer filed a suit being T. S. No. 9/99 against the petitioner for declaration that the decree dated 5.5.1999 of F. A. 77 of 1998 in connection with T.S. No. 19 of 1997 was fraudulent, inoperative and for recovery of money amounting to Rs. 5,94,523 by way of forest royalty. The Forest Range Officer also filed an application in Misc. No. 11 of 1999 for staying the execution proceeding of Ex(T) No. 4 of 1999, which was allowed by the order dated 16.9.99. It also appears that the following the filing of review petition No. 7 of 1999, this Court had also stayed the execution proceeding. It is on the record that after disposal of the review petitioner No. 7 of 1999, the state-respondents submitted a cheque amounting to Rs. 4,42,427 before the executing court on 10.8.2001 being the interest payable upto 5.5.1999 and that the cheque was withdrawn by the petitioner on 13.8.2001, which apparently resulted in dropping the execution proceeding. Subsequently, the petitioner filed an application under Section 151 CPC before the learned Civil Judge claiming further interest from the disposal of the First Appeal upto the disposal of the review petition which was registered as Civil Misc. Case No. 19 of 2001. The respondents filed objection against the application of the petitioner. By the order dated 24.6.02, the learned Civil Judge dismissed the petition. Aggrieved by the said order, the petitioner is now approaching this Court by way of this revision petition.
4. Mr. D.K. Biswas, learned Counsel for the petitioner submits that after dismissing the said Review Petition by this Court, the original judgment and decree dated 5.5.1999 got merged with the judgment dated 22.6.01 and, as such, the petitioner is entitled to the interest with effect from 5.5.1999 till 22.6.2001. According to him, the payment of the decretal amount with interest could not be effected due to the filing of the review petition by the respondents and, as such, the respondent are duty bound to compensate the petitioner for the inordinate delay in enjoying the fruits of his litigation. It, is submitted by the learned Counsel for the petitioner that the learned Civil Judge in not directing the payment of interest has committed the jurisdictional error and that it is certainly within his jurisdiction to rectify the mistake apparent in the judgment or to give a full meaning to the judgment by filling up the blanks.
5. Mr. U.B. Saha, learned Govt. Advocate counters this submission
