IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 884 of 2010()
1. U.UDAYABHANU, S/O. ANJANAVATHI,
... Petitioner
Vs
1. SAVITHRI, W/O. RAMAKRISHNAN,
... Respondent
For Petitioner :SRI.JAMSHEED HAFIZ
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/10/2010
O R D E R
THOMAS P JOSEPH, J.
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R.P.No.884 of 2010
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Dated this 13th day of October, 2010
ORDER
Review of judgment dated 30-06-2010 in W.P(C).No.7889 of
2010 is sought on the ground that relevant documents were not
brought to the notice of this court while disposing of the writ
petition, this court only considered the legal issues involved and
not the question whether by the amendment sought for and
obtained by the respondent there is change of the identity of the
property itself. Learned counsel for petitioner states that by the
change in amsom and desom brought about by the amendment vast
difference has occurred in that, in the resurvey number that is
brought out by amendment there is a separate and distinct
property in Pariyapuram amsom and desom which is brought into
the execution petition by the impugned amendment. Learned
counsel has taken me through the descriptions of property in the
plaint and final decree schedules and descriptions of property
comprised in R.S.No.34/1 of Pariyapuram amsom and desom.
2. After several round of litigation this matter is again
coming before me in the form of review. Respondent and others
filed O.S.No.44 of 1973 for partition of the properties stated in the
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plaint schedule of course, describing the amsom and desom where
the properties are situate as Rayirimangalam amsom and
Ernakaranallur desom and the old and resurvey numbers as 26/3
and 34/1. Boundaries of the two items are also given in the plaint
schedule. Petitioner was defendant No.11 in the suit. His father,
according to respondent was defendant No.30. The court passed
preliminary and final decrees for partition which was put into
execution on the request of respondent/defendant No.12. Several
obstacles came in the course of litigation as is usually said about
the process of execution in this country. Petitioner filed
E.A.No.328 of 2006 claiming independent right over the decree
schedule property. Executing court allowed that application.
Respondent challenged that order in W.P.(C).No.3347 of 2007 in
this court. This court allowed the writ petition observing that
petitioner cannot put up independent claim over the properties
since his father, defendant No.30 had not raised any of such
contention and that claim of petitioner is only under defendant
No.30. E.A.No.328 of 2006 was dismissed. Further, this court
directed that plots M1 to M4 (both inclusive) in Ext.C, plan
appended to the final decree are to be allotted to the
respondent/defendant No.12. Respondent was under the hope that
in the light of the judgment of this court he will be able to reap the
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fruits of the litigation. On his request Amin of the court below was
deputed to effect delivery of plots M1 to M4 in Ext.C5, plan to the
petitioner. The Amin then learned that there is some discrepancy
regarding amsom and desom of properties mentioned in the decree
schedule and sought to be delivered over. The discrepancy he
found was that though in the plaint schedule properties are stated
to be situated in Rayirimangalam amsom and Ernakaranallur
desom, at spot it was found to be within Pariyapuram amsom and
desom. Of course, petitioner has a contention that the Amin had
not made any report in that way to the executing court. Either
way, it is not disputed that the executing court called for a report
from the Tahsildar concerned and the Tahsildar reported that
change in amsom and desom occurred due to reorganisation of
Taluks. Based on that report, respondent filed an application to
amend the execution petition to the extent of correcting amsom and
desom as reported by the Tahsildar. The Tahsildar was examined
as witness. That application though opposed by petitioner was
allowed by the executing court which was challenged in this court
in W.P(C).No.7889 of 2010, petitioner urging that without
amending the plaint schedule, preliminary and final decree
schedules there was no question of amending the schedule in the
execution petition alone, there was no power for the court to
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amend the execution petition under Order VI Rule 17 of the Code of
Civil Procedure (for short, “the Code”) and even if amendment to
the execution petition was allowed, that would not solve the
problem. A contention was also raised in the memorandum of writ
petition that executing court had not gone through Ext.P2, (in W.P
(C).No.7889 of 2010), counter statement filed by petitioner to the
application for execution where an objection was raised that
amendment if allowed would change identity of the property. This
court after hearing both sides dismissed the writ petition by
judgment dated 30-06-2010 which is sought to be reviewed, the
main ground for review being that the amendment if allowed would
affect identity of the property which aspect was not considered by
this court. It is in this connection that learned counsel for
petitioner has raised the argument which I have adverted to above.
3. Before going into the question, I must bear in mind the
scope for review under Order XLVII of Rule I of the Code. A
review is permissible when from the discovery of a 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 some mistake or error apparent on the face of the record,
or for any other sufficient reason. So far as the last expression
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“any other sufficient reason” is concerned, binding judicial
pronouncements inform me that the expression must be read as
ejusdem generis, general words following the specific words
mentioned (in Order XLVII Rule 1 of the Code). Hence “any other
sufficient reason” referred to in Order XLVII, Rule I of the Code
must be similar to other grounds mentioned therein. It is also
stated on numerous occasions by binding authorities that a review
is not an opportunity for a rehearing or a substitute for an appeal
and that review court is concerned only with the grounds stated in
Rule I of Order XLVII of the Code.
4. The grounds which are now urged in the petition for
review were raised before the executing court and found against by
the impugned order which was under challenge in W.P(C).No.7889
of 2010. I have gone through the memorandum of writ petition in
W.P(C).No.7889 of 2010 and find that challenge was to the legal
issues involved as to whether it was within the power of executing
court to order amendment of execution petition under Order VI
Rule 17 of the Code whether, without amending the plaint schedule
and preliminary and final decree schedules it was possible for the
court to allow amendment of the execution petition schedule alone.
True, there was also a contention that trial court had not gone
through the contentions raised in (Ext.P2) counter statement to the
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application for amendment. But, writ petition was argued on the
premise that there is no dispute regarding identity of property
which fact I have referred to in the judgment dated 30-06-2010.
No argument was advanced before me that there is change of
identity of property on account of amendment permitted by the
executing court. Hence, it is not open to the petitioner to now
come up with a review and urge grounds which were not urged
before me while disposing of W.P(C).No.7889 of 2010. I also stated
that by the amendment only change brought about is that the
amsom and desom originally stated in the plaint, preliminary and
final decree schedules as Rayirimangalam amsom and
Ernakaranallur desom was corrected as Pariyapuram amsom and
desom which was based on the report and evidence of the Tahsildar
that the change occurred due to re-organisation of Taluks. I also
pointed out that there was no change in identity of the property.
Learned counsel for respondent has pointed out that what was
sought to be corrected by amendment was only amsom and desom
which is in the form of a clarification in view of the report and
evidence of Tahsildar and that boundary descriptions in the plaint,
preliminary and final decree schedules remain as such. In the light
of that, merely because there was a change in the amsom and
desom, I pointed out in the judgment sought to be reviewed, was
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only in the form of a clarification. I do not find any merit or
substance in the application, nor do I find bonafides since every
attempt was being made to stall the process of execution on one
ground or other. I must also bear in mind that in respect of the
same property petitioner had made an independent claim which
was found against by this court in the judgment in W.P(C).
No.33447 of 2007. In the light of the above petitioner cannot
succeed in this application for review of judgment dated
30-06-2010 either on point of law or on fact. If the judgment in
W.P(C).No.33447 of 2007 suffers from any illegality, remedy if any
is elsewhere.
This petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-