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High Court Of Himachal Pradesh
V.D.MISRA,H.S.THAKUR,T.R.HANDA
NALAGARH DEHATI CO-OPERATIVE TRANSPORT SOCIETY LTD., NALAGARH - Appellant
Versus
BELI RAM - Respondent
Civil Review Nos. 17, 13 to 16 and 18 of 1976
Decided On : 08/29/1980
REVIEW - MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD - SUBSEQUENT DECISION OF SUPREME COURT OR LARGER BENCH OF SAME COURT TAKING CONTRARY VIEW - FAILURE TO NOTICE EXISTING DECISION OF SUPREME COURT OR HIGH COURT.
Fact of the Case:
The petitioner challenged the execution of awards against him under Section 63(a) of the Punjab Co-operative Societies Act, 1961, arguing that the relevant provision had been deleted by an amendment. The trial court and the District Judge dismissed the objections, relying on precedents and the Himachal Pradesh General Clauses Act, 1968. The petitioner sought review, contending that the failure to consider a Supreme Court decision and an amendment to the Act constituted an error apparent on the face of the record.
Finding of the Court:
1. A subsequent decision of the Supreme Court or a larger Bench of the same court taking a contrary view on a point covered by the judgment does not amount to a mistake or error apparent on the face of the record. 2. Failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. 3. Failure to take into consideration a decision of the High Court would not amount to any mistake or error apparent on the face of the record.
Issues: 1. Whether a subsequent decision of the Supreme Court or a larger Bench of the same court taking a different or contrary view on a point covered by the judgment amounts to a mistake or error apparent on the face of the record. 2. Whether failure of the court to take into consideration an existing decision of the Supreme Court or a High Court taking a different or contrary view on a point covered by its judgment amounts to a mistake or error apparent on the face of the record.
Ratio Decidendi: 1. A subsequent decision of the Supreme Court or a larger Bench of the same court taking a contrary view does not constitute an error apparent on the face of the record because the error arises from a subsequent event, not from an error at the time of the judgment. 2. Failure to consider an existing Supreme Court decision amounts to an error apparent on the face of the record because it involves not applying the law that should have been applied. 3. Failure to consider a High Court decision does not amount to an error apparent on the face of the record because the High Court does not lay down the law as the Supreme Court does.
Final Decision: The court answered the first part of the question in the negative and the second part in the affirmative, holding that a subsequent decision of the Supreme Court or a larger Bench of the same court taking a contrary view does not amount to a mistake or error apparent on the face of the record, but failure to consider an existing decision of the Supreme Court does.
V. D. Misra, C.J.:- The following question has been referred to the Full Bench: Whether it is a mistake or error apparent on the face of the record within the meaning of Order 47, Rule 1, C.P.C. in any of the following contingencies : (i) Where after a judgment is pronounced by a court, the Supreme Court or a larger bench of the same court renders a decision taking a different or contrary view on a point covered by the said judgment; or (ii) Where the court so pronouncing a judgment has, for whatever reason, missed to take into consideration a decision of the Supreme Court or a High Court taking a different or contrary view on a point covered by the said judgment."
2. Under Section 55 of the Punjab Co-operative Societies Act, 1961 (the Act) the respondents raised disputes with the petitioner. These disputes were referred to arbitration. Awards were given against the petitioner. Under S.63(a) of the Act the awards could be executed as decrees of a civil court. Applications for executions were, therefore, made in the court of senior Sub Judge. The property belonging to the petitioner was attached. Objections under Section 47, Civil Procedure Code, were filed by the petitioner. These objections were dismissed on the ground that an executing court could not go behind the decree. The petitioner appealed to the District Judge with no better results. The matter was brought to the High Court in second appeal.
3. Various contentions were raised before a learned single Judge of this court. It was, inter alia, contended that cl.1(a) of Section 87 of the Act having been deleted by the Himachal Pradesh Co-operative Societies (Amendment) Act, 1972, the award could no longer be executed as a decree. The learned Judge negatived the contention in view of Section 4(e) of the Himachal Pradesh General Clauses Act, 1968. A reference was made to a Full Bench decision of East Punjab High Court in Ram Singh v. The Crown, AIR 1950 East Punj 25. Two Supreme Court decisions were relied upon. These are : Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636 and Jayantilal Amarathlal v. The Union of India, (1971) 1 SCWR 424. The learned judge while repelling petitioners contention that the awards were without jurisdiction relied upon the judgment of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman. AIR 1970 SC 1475.
4. The petitioner seeks review on the grounds that the case of Ram Singh (supra) has been overruled by the Supreme Court in Gopi Chand v. Delhi Administration, AIR 1959 SC 609; decision of the Supreme Court in Bhavan Vaja v. Solanki Hanuni Khodaji Mansang AIR 1972 SC 1371 was not noticed; and that Nani Gopal Mitras case (supra) was not properly appreciated.
5. It is contended that the failure to take notice of an existing judgment of the Supreme Court amounts to an error apparent on the face of the record since it is law under Article 141 of the Constitution. It is submitted that where a judgment of the Supreme Court overrules the judgment of a High Court which was the basis of judgment sought to be reviewed, the Supreme Court judgment demonstrates the error which then becomes apparent.
6. Order XLVII of the Code of Civil Procedure deals with review. The relevant part of Rule 1 reads: "(I) Any person considering himself aggrieved - (a) by a decision on a reference from a Court of Small Causes, 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 or could not be produced by him 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, or for any other sufficient reason, 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
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