ESIYA P. v. Raheena and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 22[ND] DAY OF MAY 2023/1ST JYAISHTA, 1945** **RP NO.403 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED 13.03.2023 IN MA (EXE.) 3/2022 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT:** ESIYA P., AGED 36 YEARS, W/O.RAFEEQUE, PUNNAKKODAN HOUSE, MEPPADI, KAPPAMKOLLY, KOTTAPPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, PIN – 673577. BY ADVS. MATHEW KURIAKOSE K.R.ARUN J.KRISHNAKUMAR (ADOOR) MONI GEORGE ## **RESPONDENTS/RESPONDENTS:** 1 RAHEENA, AGED 40 YEARS, D/O.ABU, PALLIYALITHODI HOUSE, PUTHOOR POST, KOTTAKKAL, MALAPPURAM DISTRICT, PIN – 676573. 2 MUHAMMED SHAFI, S/O. ALAVI, PUNNAKKODAN HOUSE, KAPPANKOLLY, WAYANAD DISTRICT, PIN – 673577. 3 USMAN, KUNNUMMAL HOUSE, KOOTTILANGADI, MALAPPURAM DISTRICT, PIN – 676506. 2 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 BY ADVS. MUHAMMED SHAMEEM PAKSAN R.O.MUHAMED SHEMEEM THIS REVIEW PETITION HAVING COME UP FOR HEARING ON 12.04.2023, THE COURT ON 22.05.2023, DELIVERED THE FOLLOWING: 3 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 ## **O R D E R** ## P.G. Ajithkumar, J. This is a petition for review filed under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The petitioner is the appellant in Mat. Appeal (Exe.) No.3 of 2022. The appeal was dismissed by judgment dated 13.03.2023. The said judgment is sought to be reviewed. 2. In the light of the submission of the learned counsel appearing for the petitioner that the learned counsel appeared for the respondents in the appeal refused to accept the notice on the ground that he had already returned the file to the respondents, notice on admission was directed to be served on the respondents by Special Messenger. Service of notice on the 2[nd] respondent, who is the judgment debtor, was dispensed with for the time being. Despite receipt of notice, respondent Nos.1 and 3 did not choose to appear before the Court. 3. Heard the learned counsel appearing for the petitioner in detail. 4 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 4. Mat.Appeal (Exe.) No.3 of 2022 was filed by the petitioner challenging the order of the Family Court, Kalpetta dated 17.03.20222 in E.A.No.4 of 2020 in E.P.No.2 of 2016 in O.P.No.39 of 2013. E.A.No.4 of 2020 was filed by the petitioner under Order XXI, Rule 90 of the Code seeking to set aside the sale of the property in question, in execution of the decree in O.P.No.39 of 2013. That execution application was dismissed on more than one ground. The claim of the petitioner was based on a gift deed executed by the judgment debtor. It is Gift Deed No.4495/2014. That deed was executed on 06.12.2014. Whereas, the decree in O.P.No.39 of 2013 is dated 22.07.2014. The Family Court in that context held that document No.4495/2014 was void under the provisions of Section 53 of the Transfer of Property Act, 1882 (for short “TP Act”). The Family Court found that E.A.No.4 of 2020 was filed beyond the period of limitation. Essentially, on those two grounds, E.A.No.4 of 2020 was dismissed. 5. This Court as per the judgment dated 13.03.2023 upheld those two grounds. Further, this Court considered the 5 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 plea raised by the 1st respondent that E.A.No.4 of 2020 was barred by the principles of res judicata, in the light of the decision of the Family Court in E.A.No.5 of 2016, which was confirmed by this Court in Mat. Appeal (Exe.) No.6 of 2019. 6. The petitioner would contend that the said judgment is erroneous for several reasons. It is contended that even if Gift Deed No.4495/2014 in favour of the petitioner is hit by Sections 52 and 53 of the TP Act, the same is not void altogether; whereas, subject to the claim of the 1st respondent-decree holder, the petitioner would get title to the property. Therefore, the petitioner would contend that the decision invalidating the said document is incorrect. In this regard, the learned counsel appearing for the petitioner placed reliance on a few decisions of this Court as well as the Apex Court. 7. In **Aswathanarayana Setty K.N. (D) Tr.LRs. and others v. State of Karnataka and others [(2014) 15 SCC 394],** the Apex Court held that a transferee pendente lite is bound by the decree and the litigating party is 6 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 exempted from taking note of the title acquired by the pendente lite transfer. The Apex Court, however, further held that the transferee is entitled to claim right to the property subject to the decree in the pending suit. A similar view was taken by the Apex Court in **Thomson Press (India) Ltd. v. Nanak Builders & Investors P.Ltd. [(2013) 5 SCC 397]** and **Girish G.T. v. Y. Subba Raju (D) by LRs. and another [(2022) 12 SCC 321]** . 8. The petitioner has filed E.A.No.5 of 2016 claiming right over the property in question by invoking the provisions of Order XXI, Rule 58 of the Code. In that petition, the Family Court, as well as this Court, took the view that the 1[st] respondent-decree holder is entitled to realise the decree debt from the property covered by the said decree since the transaction was hit by the provisions of Sections 39 and 52 of the TP Act. In the wake of the said decision, the petitioner could claim removal of the clog on the title by satisfying the decree in O.P.No.39 of 2013. If the petitioner wanted to exercise that right and get the property excluded from being 7 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 proceeded against in execution of the decree in O.P.No.39 of 2013, her option was to deposit the decree debt at least by invoking the provisions under Order XXI, Rule 89 of the Code. The petitioner did not choose to do so. Instead, he filed a petition under Order XXI, Rule 90 of the Code for setting aside the sale. In such circumstances, the contention of the petitioner that despite the decree in O.P.No.39 of 2013 and its execution by sale of the property, her right and title to the said property remain intact and valid is totally untenable. Hence the view taken by this Court in the judgment dated 13.03.2023 in that respect cannot be said to be incorrect. 9. The next contention of the petitioner is that the defect to the title in view of the provisions of Section 53 of the TP Act also is a curable one, once the decree debt is satisfied. The learned counsel appearing for the petitioner placed reliance in this regard on the observation of this Court in **Balabhadran v. Sarada and others [2014 (4) KHC 374]** . It was observed therein that there is no setting aside of a document when a declaration is made that the document is 8 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 void under Section 53 of the TP Act. The document exists and continues to exist as valid and the effect is only that the document would not bind the creditor. 10. The provisions of Section 53 of the TP Act declare that if a document is executed, transferring an immovable property with intent to defeat or delay the creditor of the transferor, it shall be voidable at the option of the creditor. Therefore, the effect of a declaration that the document is vitiated by Section 53 of the TP Act is that the creditor is entitled to proceed against the property by ignoring such a transfer. In this case, when the petitioner preferred E.A.No.5 of 2016 in order to establish her right, title and interest in the property in question, it was resisted by the 1st respondent by contending that the said transaction was a fraudulent one by virtue of the provisions of Section 53 of the TP Act. That contention was upheld by the Family Court, which was affirmed by this Court as per the judgment dated 19.02.2020 in Mat.Appeal (Exe.) No.6 of 2019. In view of the said judgment, no plea that Gift Deed No.4495/2014 would not 9 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 come within the mischief of Section 53 of the TP Act is certainly barred by the principles of res judicata. 11. Of course, the petitioner could have availed the opportunity to avoid the sale of the property by satisfying the decree in O.P.No.39 of 2013. She did not choose to exercise that right by making payment before or after the sale. In that situation, the 1[st] respondent executed the decree by sale of the said property. Once sale is confirmed and the decree is satisfied, the voidability of Gift Deed No.4495/2014 matured into voidness and the plea of the petitioner based on Sections 52 or 53 of the TP Act no more is a point for consideration. The title to the property was divested in favour of the auction purchaser. In view of that matter, the petitioner cannot contend that the judgment dated 13.03.2023 is incorrect. 12. The learned counsel appearing for the petitioner would submit that there was no delay in filing E.A.No.4 of 2020, but the delay was for the re-presentation of the petition after curing defects. That question has no much relevance now, since Mat. Appeal (Exe.) No.3 of 2022 was dismissed not 10 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 on that technical ground of delay, but rather on other substantial grounds. The plea of the petitioner that the sale of the property in E.P.No.2 of 2016 was void for non-compliance with the provisions of Order XXI, Rule 66 of the Code also does not deserve consideration since the findings with reference to the plea based on Sections 52 and 53 of the TP Act foreclosed the petitioner from raising such contentions at this stage. 13. In **Meera Bhanja v. Nirmala Kumari Choudhury** **[(1995) 1 SCC 170]** the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code. 14. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code held that a judgment might be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error that is not self-evident and has to be detected by a process of reasoning, 11 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In the exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. 15. In **Lily Thomas v. Union of India [(2000) 6 SCC 224]** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 16. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that the review jurisdiction is extremely limited and unless there is a mistake apparent on the face of the record, the order/judgment does not call for a review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at 12 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit the rehearing of the matter on merits. ## 17. The Apex Court in **S.Madhusudhan Reddy v.** ## **V.Narayana Reddy and others [2022 SCC OnLine SC** ## **1034 : 2022 (5) KLT SN 18]** it was held as follows:- “26. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court’s jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence 13 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however, an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as “for any other sufficient reason”. The said phrase has been explained to mean “a reason sufficient on grounds, at least analogous to those specified in the rule” (Refer: **Chajju Ram v. Neki Ram [AIR 1922 PC 112]** and **Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others [1955 SCR 520]** .” 18. In the light of the law laid down in the aforesaid decisions, this Court cannot sit in appeal while exercising the review jurisdiction. Only if there is an error in the judgment 14 Review Petition No.403 of 2023 in Mat.Appeal (Exe.) No.3 of 2022 perceivable on a mere perusal of the same, there can have a review. Since the petitioner failed to substantiate any such apparent error, we are of the view that this petition is liable only to be dismissed. Hence the Review Petition is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr