P. Radhakrishnan and P.V. Aravindakshan v Kamakshi Balakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934** ## **RP.No. 1023 of 2012 () IN RFA/28/2010** **-------------------------------------AGAINST THE ORDER IN RFA.28/2010 DATED 28.09.2012** ## **REVIEW PETITIONERS/RESPONDENTS : ----------------------------------------------** **1. P. RADHAKRISHNAN, AGED 74 YEARS** **ADVOCATE, S/O. LATE A.KUMARA KAIMAL, 39/4285 RESIDING AT MANIKKIRI CROSS ROAD, PALLIMUKKU ERNAKULAM, KOCHI-682 016.** **2. P.V.ARAVINDAKSHAN , AGED 71 YEARS** - **S/O. LATE VELAYUDHAN, FORMER PRESIDENT** **CHINMAYA MISSION, ERNAKULAM, RESIDING AT SOUBHADRAM THEKKUMBHAGOM, TRIPUNITHURA-682 301.** **BY ADVS.SRI.K.RAMACHANDRAN SRI.N.DHARMADAN (SR.)** ## **RESPONDENT(S)/APPELLANTS :** **--------------------------** **1. KAMAKSHI BALAKRISHNA, AGED 87 YEARS** - **D/O. LATE M.NARAYANA MENON, DIRECTRESS CHINMAYA VIDYAPEET, WARRIAM ROAD, KOCHI-682 016.** **2. MAYA MOHAN , AGED 58 YEARS** - **D/O. LATE BRIGADIER BALAKRISHNA, PRINCIPAL CHINMAYA VIDYALAYA, VADUTHALA, ERNAKULAM KOCHI-682 023.** **3. RAMKUMAR MENON , AGED 61 YEARS S/O. LATE E.R.K.MENON, 'PARVATHY NIVAS', DIWANS ROAD KOCHI-682 016.** **4. CENTRAL CHINMAYA MISSION TRUST** **A TRUST REGISTERED UNDER THE BOMBAY TRUST ACT HAVING ITS OFFICE AT SANDEEPANANY SADHANALAYA** **SAKI VIHAR ROAD, MUMBAI-400 072** **REPRESENTED BY ITS CHIEF EXECUTIVE NARAIN BHATTIA.** **5. CHINMAYA MISSION EDUCATIONAL & CULTURAL TRUST (GREATER COCHIN)** **HAVING ITS REGISTERED OFFICE AT 'SREYAS' SAHODARAN AYYAPPAN ROAD, MANORAMA JUNCTION, KOCHI-682 016 REPRESENTED BY ITS CHIEF SEVAK HAVING HIS OFFICE AT 41/3647, 1ST FLOOR, BLUE BIRD TOWERS, PROVIDENCE ROAD ERNAKULAM, KOCHI-682 018.** **-2-** ## **RP.No. 1023 of 2012 () IN RFA/28/2010** **6. SWAMI TEJOMAYANANDA, AGED ABOUT 60 YEARS SANDEEPANANY SADHANALAYA, SAKI VIHAR ROAD, PAWAI, MUMBAI-400 072.** **7. A.GOPALAKRISHNAN , AGED 59 YEARS S/O. ANANDA NARAYANA IYER, CHIEF SEVAK BUILDING NO.41/3647, FIRST FLOOR, BLUE BIRD TOWERS PROVIDENCE ROAD, KOCHI-682 018.** **8. CENTRAL BOARD OF SECONDARY EDUCATION, 'SHIKSHA SADAN', ROUSE AVENUE, NEW DELHI-110002 REPRESENTED BY ITS SECRETARY** **9. V.A. MOHAMMED ASHARAF, S/O.LATE ABDUL KHADER, AGED 54 YEARS , RESIDING AT VALIYAVEETTIL HOUSE, JEW STREET, KOCHI-35** **10. JABEEN.L.ZACHARIAS, AGED 49 YEARS, W/O.LALICHAN ZACHARIAS, RESIDING AT KAKKANTHOTTIL HOUSE, JAYA NAGAR, MARADU.** **11. DR.AJITH KUMAR.B, INDRAPRAST APARTMENTS, T.D.ROAD., KOCHI-35** **12. B. ANILKUMAR, M.COM,LL.B,FCS, S/O.LATE N. BALAKRISHNA PILLAI,AGED 50 YEARS, RESIDING AT D-9 H N C – QUARTERS, NEWS PRINT NAGAR, KOTTAYAM** **13. SUHEEL KUMAR PURI, S/O.LATE R.C.PURI, AGED 40 YEARS, G.C.S.I. WEST WATERS, MALOTH ROAD, PERUMANOOR P.O., THEVARA, KOCHI-15** **14. MRS.KRISHNA SREEDHARAN, AGED 56 YEARS, W/O.LATE SREEDHAR, RESIDING AT 'SREYUS',38/1911, PLAKUTT COLONY, ELAMKULAM ROAD, KOCHI.** **15. ANIL.K.MENON, AGED 50 YEARS, S/O. M.K. KUTTAPPA MENON, FLAT NO.7A, AMRIT RETREAT, K.P.VALLON ROAD, KADAVANTHRA,KOCHI-20** **BY ADVS. SRI.B RAGHUNANDHANAN(VIDE ORDER 15.11.12) SRI.S. SREEKUMAR (SR) SRI.K.P.SREEKUMAR** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20-11-2012, THE COURT ON 06-12-2012 PASSED THE FOLLOWING:** **dlk** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - R.P. No. 1023 of 2012 in I.A. No. 1141 of 2012 in R.F.A. No. 28 of 2010. - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of December, 2012. ## **ORDER** The review petition is directed against the order in I.A.1141 of 2012 in R.F.A. No.28 of 2010 which was disposed of by order dated 28.9.2012. 2. Before going to the review petition, in order to understand the scope and propriety of the review petition, it will be necessary to refer to a few facts. 3. A suit as O.S.9 of 2009 was instituted before the District Court, Ernakulam purportedly under Section 92 of the Code of Civil Procedure regarding the affairs of a public trust, namely, Chinmaya Mission Educational and Cultural Trust, hereinafter referred to as CMECT. Seven persons constituted a trust by deed dated 17.3.1994. In the suit, allegations of corruption, nepotism, mismanagement, maladministration, financial irregularities and several other R.P.1023/2012. 2 allegations were raised against some of the defendants. A few of the defendants entered appearance and during the pendency of the suit some of the parties entered into a compromise which was filed before court. Since the suit was in a representative capacity, the compromise was published in newspapers as required under Order XXIII Rule 3B(2) read with Order 1 Rule 8 Sub-Rule (4) of C.P.C. In pursuance to the publication, defendants 6 to 14 got themselves impleaded. They filed their objection against the acceptance of the compromise. While so, some of the defendants filed I.A.4767 of 2009 in O.S.9 of 2009 seeking to withdraw from the compromise filed before court. Some of the defendants subsequently got impleaded and they also filed objections to the compromise. Rejecting the various objections, the compromise filed before court was accepted and a decree was passed. One of the clauses in the decree reads as follows: “The Governing Board constituted on 17.5.2008 for the Chinmaya Vidyalaya, R.P.1023/2012. 3 Ernakulam shall stand dissolved and in its place a Managing Committee as required to be formed under the C.B.S.E. Affiliation bye-laws shall take over the management of the said Vidyalaya on or before 28.2.2009.” Though a few defendants have filed a review petition before the court below, those were dismissed. Some of the defendants challenged the said judgment and decree in R.F.A.28 of 2010 before this court. The first respondent in the appeal had a contention that the appeal was not maintainable and he sought to support the compromise decree passed by the trial court. 4. On various occasions when the matter came up before this court, knowing the consequences of the decree and the impact it could have on a prestigious and well run institution, various suggestions were made to have the matter amicably settled. From the proceedings, it would be abundantly clear that the court was more concerned with the welfare and the proper running of the institution and its R.P.1023/2012. 4 fate. By the internal bickerings between the parties, the institution alone stood to loose and infact all the issues that arose in the suit could have been settled out of court amicably. 5. Keeping in view the welfare of the institution and the necessity to devise a proper method to ensure that the institution is run properly, several suggestions were made by this court. The main suggestions were with regard to Clauses 2 and 3 of the decree of the trial court. Ultimately, this court taking note of the various aspects of the case thought it fit to appoint a committee to conduct an enquiry as contemplated in the trial court decree and directed the parties to supply the names of the persons whom they like to be considered as members of the Committee. Both sides submitted their respective panels and ultimately after deliberation, the Committee headed by Justice K.T. Thomas as the Chairman was constituted. After R.P.1023/2012. 5 considering the various aspects, this court passed a modified decree, which reads as follows: “Accepting the suggestions and considering the various aspects, a modified decree is passed as follows: (1) The Governing Board constituted on 17.5.2008 for the Chinmaya Vidyalaya, Ernakulam shall stand dissolved and in its place a Managing Committee as required to be formed under the C.B.S.E. affiliation bye-laws shall take over the management of the said Vidyalaya on or before 28.2.2009. (2) The 4[th] joint petitioner/2[nd] defendant shall appoint a Managing Committee for the Chinmaya Vidyalaya, Ernakulam as per C.B.S.E. affiliation bye-law as per the suggestions made by the Committee constituted above and from the panel obtained by the 2[nd] defendant. (3) The financial irregularities, mal-practices and such other irregularities complained of in the original petition may be enquired into by the Committee consisting of Mr.Justice K.T.Thomas and Mr. Justice T.V.Ramakrishnan and the third member to be engaged by the Chairman of the R.P.1023/2012. 6 Committee. The Committee may enquire into all the irregularities commencing from the period 1.4.2002 or from such period as the Committee deems fit and submit a report to the second defendant in the suit as early as possible. (4) The recommendations of the Committee shall be binding and enforceable on all the parties to the suit. The expenses in connection with the enquiry shall be met by Chinmaya Vidyalaya, Ernakulam. The remuneration for the various members of the Committee are tentatively determined as follows: (i) Chairman (Mr. Justice K.T.Thomas)- Rs.1,25,000/(ii) Mr. Justice T.V.Ramakrishnan - Rs.1,00,000/(iii) 3[rd] Member (Chartered Accountant)Rs.75,000/The remuneration shall be paid directly to the members. The second defendant in the suit will be at liberty to take such steps as are necessary in the light of the report submitted by the Committee. (5) Till the completion of the enquiry and submission of the report by the Committee appointed by this court, the Committee may determine as to the actual functions that could be carried on by the Principal of the School of R.P.1023/2012. 7 Chinmaya Vidyalaya, Ernakulam for the day to day administration of the School. (6) The personal allegations made against the 5[th] joint petitioner/3[rd] defendant and 3[rd] joint petitioner/1[st] defendant are hereby withdrawn by the 1[st] and the 2[nd] joint petitioners/1[st] and 2[nd] plaintiffs.” 6. It appears that the Committee, after several sittings, requested both parties to submit a panel of names from whom persons have to be included in the list to be submitted by the second respondent who is to constitute the Managing Committee as per the decree of this court. It may be remembered at this juncture that the judgment of this court was dated 7.9.2011. Obviously, the Committee which is contemplated under Clause 2 of the decree of this curt could have been constituted only thereafter and such a Committee could have taken charge only later. 7. Noticing that there is a conflict between Clause 1 and Clause 2 of the decree of this court, R.P.1023/2012. 8 respondents 1 and 2, who are the petitioners herein filed I.A.1141 of 2012 under Section 151 of C.P.C. seeking clarification regarding the operation of Clauses 1 and 2 of the decree of this court. 8. It is necessary to refer to the affidavit filed in support of the petition under Section 151 C.P.C. seeking clarification. The main contention was that even though this court modified the decree, as per clause 2, the Managing Committee to be constituted was to take over the management of the Vidyalaya on or before 28.2.2009. That date, according to the petitioners in I.A.1141 of 2012, did not get altered by the modified decree of this court and if that be so, the Managing Committee constituted by the 4[th] joint petitioner as per the decree of this court is to take charge with effect from 28.2.2009. The further contention was that the right of the plaintiffs in the suit, who are the petitioners in I.A.1141 of 2012 to have the management replaced as on 28.2.2009 was preserved by this court and 9 the petitioners are entitled to have that benefit. The principle of restitution was also invoked. 9. It is significant to notice that the petition was filed under Section 151 C.P.C. and neither Section 114 nor Order 47 is seen mentioned in the petition nor is there anything to show that the petition was filed under those provisions. It is also significant to notice that no objection was taken in I.A.1141 of 2012 to the modified decree and the only assertion in I.A.1141 of 2012 was that Clause 1 of the decree of this court should prevail over Clause 2 thereby contending that the Managing Committee to be constituted as per the decree of this court should take charge with effect from 28.2.2009. What is significant is that there was no contention taken in the affidavit or in the petition that this court had no jurisdiction to modify the consent decree passed by the trial court or that the decree so passed by this court is invalid in law. On the other hand, R.P.1023/2012. 10 the petitioner in I.A.1141 of 2012 wanted the decree passed by this court to be implemented in a particular manner. 10. The only grievance then was that the attempt on the part of the new Managing Committee to take effect from a future date other than 28.2.2009 cannot be countenanced. In view of Clause 1 of the decree passed by this court and for the said purpose the petitioners in I.A.1141 of 2012 invoked the principle of restitution. 11. The respondents in the I.A. pointed out that the mentioning of date 28.2.2009 can be treated only as an inadvertent mistake committed by this court since the judgment and decree of this court is dated 7.9.2011. As per the decree of this court, a Committee was constituted and the said Committee was to submit a panel of names to the second respondent as referred to Clause 2 of the decree of this court for constitution of the Managing Committee of the Vidyalaya. The deliberation of the Committee could begin only thereafter and obviously, the Managing Committee to R.P.1023/2012. 11 be constituted as per Clause 2 of the decree can be only after the date of judgment of this court. Therefore, the contention on behalf of the petitioners in I.A.1141 of 2012 that the Committee to be constituted long after the date mentioned in Clause 1 of the decree of this court should take charge from the date mentioned in Clause 1 is practically impossible and that is sufficient to show that the date mentioned in Clause 1 of this court is an inadvertent mistake. 12. This court considered the rival contentions and disposed of the I.A. As follows: “5. After having gone through the petition and the counter affidavit and on hearing the respective counsel, the contention of the respondents that the petition lacks bonafides and is filed with an oblique motive seems to be fully justified. This court disposed of R.F.A. Nos.28, 602 and 630 of 2010 vide judgment dated 7.9.2011. This court by the said judgment constituted a Committee consisting of three persons and conferred considerable powers on R.P.1023/2012. 12 that Committee. This court made it clear in the judgment that the Managing Committee of the Chinmaya Vidyalaya as per the CBSE affiliation bye-laws shall be appointed by the fourth joint petitioner/ second defendant as per the suggestions made by the Committee constituted and from the panel obtained by the second defendant. It is therefore clear that the Managing Committee for Chinmaya Vidyalaya as per the CBSE affiliation could have been constituted only from the panel submitted by the Committee appointed by this court. That constitution of the Committee obviously could have been only after 7.9.2011 and therefore the date shown as 28.2.2009 as the date of taking over charge obviously is an inadvertent mistake committed by this court.” 13. The present review petition, namely, R.P. 1023 of 2012, is filed under the assumption that I.A.1141 of 2012 was one for review of the judgment and decree in R.F.A. 28 of 2010. Learned Senior Counsel appearing for R.P.1023/2012. 13 the review petitioners contended that since the judgment and decree in R.F.A. 28 of 2010 has merged in the order in I.A.1141 of 2012, review of the order in I.A.1141 of 2012 is sought for. The main complaint raised by the learned Senior Counsel is that this court had deliberately omitted to advert to certain vital aspects which were raised for consideration in I.A.1141 2012 regarding the maintainability of the appeal and the competence of this court to interfere with the compromise decree. 14. Learned Senior counsel appearing for the review petitioners contended that being a compromise decree under Order 23 Rule 3, this court had no jurisdiction or power to modify or vary the decree altering terms of the decree of the lower court and the alteration made by this court would amount to varying the terms of the agreement arrived at by the parties, which is again, impermissible in law. In support of his contention, learned counsel relied on the decisions reported in **Pushpa Devi** R.P.1023/2012. 14 **Bhagat v. Rajinder Singh** (AIR 2006 SC 2628), **Shamlal Batra v. Bhagwandas Narandas Patel** ((1973) 1 SCC 175), **Katikara Chintamani Dora v. Guntreddi Annamanaidu** ((1974) 1 SCC 567), **Suvaran Rajaram Bandekar v. Narayan R. Bandekar** ((1996) 10 SCC 255), **K. Venkata Seshiah v. Kanduru Ramasubramma** ((1991) 3 SCC 338) and **Thamineni Kathavanga Naidu v. Mutluru Ramappa** (2007(4) ALT 164). This vital aspect, according to learned Senior Counsel, was not dealt with by this court while considering I.A.1141 of 2012 and that constitute an error apparent on the face of the record. The further contention is that the remarks made by this court as against the first petitioner, who is a lawyer by profession and who, according to the learned Senior Counsel appearing for the review petitioners, had rendered commendable service in the running of the School was quite unwarranted and unjustified, so they may be expunged. It was also contended that the principle of restitution R.P.1023/2012. 15 highlighted in I.A.1141 of 2012 was not considered by this court and the decisions mentioned in the said I.A. in support of the plea of restitution were also not considered. 15. Learned counsel appearing for the respondents pointed out that it is quite unfortunate that the effort taken by this court to streamline the management and administration of a prestigious School is attempted to be thwarted again and again by the petitioners by filing frivolous and vexatious petitions. It was pointed out by the learned counsel appearing for the respondents that I.A.1141 of 2012 was one filed under Section 151 of C.P.C. and not one seeking review of the judgment in R.F.A. 28 of 2010 under Section 114 and Order 44 Rule 1 C.P.C.. The main contention now taken is that this court had no jurisdiction or power to vary or alter the decree passed by the trial court. No where in the affidavit in support of I.A.1141 of 2012 there is a contention to the effect that this court was incompetent to alter the judgment and decree of R.P.1023/2012. 16 the trial court which was passed based on a compromise and thereby varying the terms agreed to between the parties. The scope of I.A.1141 of 2012 as could be discerned from the affidavit in support of the petition, according to the learned counsel for the respondents, is that Clause 1 wherein the date 28.2.2009 is mentioned should prevail over Clause 2 of the decree of this court. There was no challenge either in the affidavit or in the petition I.A.1141 of 2012 that the appeal itself was not maintainable and that this court had no jurisdiction to interfere with the judgment and decree passed by the lower court on the basis of the compromise. Since there was no such contention taken in I.A.1141 of 2012, this court had no occasion to consider the same. Having not urged that point in I.A.1141 of 2012 and having contended for the position that Clause 1 of the decree passed by this court should prevail over Clause 2 of the decree, the present attempt under the guise of labelling I.A.1141 of 2012 as a review R.P.1023/2012. 17 petition, the petitioners are infact seeking review of the judgment in R.F.A. 28 of 2010 which was not the subject matter in I.A.1141 of 2012. Such an act is impermissible in law. The ingenuous method evolved by the petitioners in seeking a review of the judgment and decree in R.F.A. 28 of 2010 is only to be deprecated because a review of the judgment in R.F.A. is hopelessly barred by limitation. It is to circumvent the said infirmity that this dubious method has been adopted by the petitioners to label I.A.1141 of 2012 as a review petition thereby seeking to have the judgment and decree in R.F.A.28 of 2010 indirectly reviewed. Learned counsel went on to point out that such dilatory and mischievous acts call for strong deprecation and it only shows that the attempt of the petitioners is to upset the smooth functioning of the School, the affairs of which had been put on rails as a result of the decree in R.F.A. 28 of 2012 and consequent to the deliberations of the Committee constituted by this court and the Managing R.P.1023/2012. 18 Committee appointed pursuant thereto. It was also pointed out that the petitioners took part in the deliberation of the Committee constituted by this court without demur and have submitted panel of names whom they wish to be considered as members of the Managing Committee. It is quite uncharitable, according to the learned counsel for the respondents, to blame this court for not having considered a question now raised which finds no place in I.A.1141 of 2012 and which this court was not called upon to deliberate and decide. Learned counsel therefore contended that the review petition is only to be dismissed. 16. Learned counsel appearing for the respondents also pointed out that as far as the remarks made by this court against the first petitioner are concerned, they are justified, as could have seen by the filing of the present petition, in which unfounded allegations are made against this court and the attempt of the petitioner is to put the clock back and upset the entire R.P.1023/2012. 19 efforts taken by this court and parties to ensure that the School is run effectively and properly. The claim that this court had deliberately omitted to consider a point which was agitated before this court being false as there was no such contention either raised in I.A.1141 of 2012 nor contended before this court at the time of argument of said I.A. before this court, it is only in the fitness of things that the petitioners are to be mulcted with exemplary costs for gross misuse and abuse of the process of court. It was also emphasized that such unhealthy practices should be dealt with firmly. 17. As rightly pointed out by the learned counsel for the respondents, it is quite unfortunate that this court has been found fault with and in fact accused of not considering the maintainability of the appeal and the jurisdiction of this court to interfere with the compromise decree earlier which were not even urged before this court in I.A.1141 of 2012 and regarding which no arguments were R.P.1023/2012. 20 addressed before this court at the time of hearing of I.A.1141 of 2012. The accusation, to say the least, is disturbing and uncharitable. 18. In this context, it becomes necessary to refer to I.A.1141 of 2012 in some detail. As rightly pointed out by the learned counsel for the respondents, the petition is seen filed under Section 151 C.P.C. and the prayer in the petition reads as follows: “For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon'ble Court may be pleased to give a clarification sought by the Hon'ble Committee appointed by this Hon'ble Court in its sitting held on 2.5.2012 with regard to Clause 1 and 2 of para 15 of the judgment of this Hon'ble court dated 7.9.2011 by holding to the effect that Clause 1 of para 15 shall prevail over Clause 2 of para 15.” Nowhere in the affidavit in support of the petition, there is any mention regarding the contention now taken that this court ought not to have interfered with the compromise R.P.1023/2012. 21 decree and the appeal itself was not maintainable. In fact, a reading of the affidavit would reveal that the petitioners had accepted the decree and they only want a clarification that Clause 1 of the decree of this court prevails over Clause 2, thereby contending for the position that the Managing Committee to be constituted much later to the decree of this court should be directed to take charge retrospectively with effect from 28.2.2009. The petitioners in I.A.1141 of 2012 claimed that they have a right to have the Managing Committee which has to take charge from 28.2.2009 based on the principle of restitution. 19. Apart from the fact that there was no challenge to the validity of the decree passed by this court in I.A.1141 of 2012, it is also significant to notice that the petitioners took part in the deliberation before the Committee constituted by this court without any demur and they also submitted their panel of names to be considered for being appointed as members of the Managing R.P.1023/2012. 22 Committee. There is no whisper in the affidavit in support of I.A.1141 of 2012 that the decree passed by this court is without jurisdiction and is a nullity. 20. The inability of this court to accept the contention raised in I.A.1141 of 2012 to the effect that clause 1 should be declared to prevail over clause 2 of the decree has been dealt with in detail while disposing of I.A.1141 of 2012. 21. One can have no quarrel with the proposition laid down in the various decisions relied on by the learned counsel for the petitioners which have referred to the scope of interference with a compromise decree. But, as already noticed, apart from the fact that I.A.1141 of 2012 was not a petition seeking review of the judgment and decree in R.F.A.28 of 2010, it was in fact a petition seeking clarification, accepting the terms of the decree. When this court found that the date 28.2.2009 mentioned in clause 1 of the decree of this court was an inadvertent mistake and R.P.1023/2012. 23 that it is impossible to have a Managing Committee to take effect with retrospective effect, the relief sought for by the petitioners was declined. Since the principle of restitution was taken aid of for the purpose of contending that Clause 1 should prevail over Clause 2 and since it was found that it cannot be so, this court did not further probe into the principle of restitution agitated by the petitioners in I.A.1141 of 2012. More so because, that question thereafter did not arise for consideration at all. 22. As I.A.1141 of 2012 was a petition filed under Section 151 C.P.C. and the prayer was only seeking clarification to the effect that Clause 1 in the decree passed by this court prevails over Clause 2, by no stretch of imagination I.A.1141 of 2012 can be treated as a petition for review of the judgment and decree in R.F.A.28 of 2010. Therefore, the contention now taken by the petitioners and very vehemently argued by the learned Senior Counsel on R.P.1023/2012. 24 their behalf that the decree of this court in R.F.A.28 of 2010 has merged with the order in I.A.1141 of 2012 cannot be countenanced. At the risk of repetition, it may be mentioned that there was no review sought for of the judgment and decree in R.F.A.28 of 2010 in I.A.1141 of 2012, but on the other hand it was regarding the mode of implementation of the decree clarification was sought for in the said petition. If that be so, the judgment and decree in R.F.A.28 of 2010 cannot be deemed to have merged with the order in I.A.1141 of 20112 and the judgment and decree remains as such. In the present petition, i.e., R.P.1023 of 2012, there is no prayer to review the judgment and decree in R.F.A.28 of 2010. 23. Apart from the above facts, if one is to assume as contended by the learned Senior Counsel for the petitioners that I.A.1141 of 2012 is a review petition, then a review of an order in review is not maintainable. In the R.P.1023/2012. 25 decision reported in **Niyamavedi v. Union of Indi** a (AIR 2004 Kerala 81), it was held as follows: “12. .......... Application for condonation of delay as well as the prayer to entertain the second Review Petition was opposed by the counsel for the applicant contending that under Order XLVII, Rule 1, no application for review of an order passed on a review petition shall be entertained. We also endorse the view that no second review petition would lie......” In the light of the above facts and circumstances, one need not deal with the decisions relied on by the learned Senior Counsel for the petitioners that if the court fails to consider the grounds urged in support of the appeal or proceedings before a court, that constitutes an error apparent on the face of the record entitling the party concerned to seek review. 24. Coming to the question of expunging the remarks made by this court against the first petitioner, as R.P.1023/2012. 26 rightly pointed out by the learned counsel for the respondents, the filing of the present review petition on false allegations only justifies the remarks made by this court. Learned counsel for the respondents are fully justified in their submission that the present review petition amounts to gross misuse and abuse of the process of this court. 25. It is also significant to notice that the present petition has been filed long after the new Managing Committee has taken charge and the administration and management of the School is being properly carried on. The Committee appointed by this court is also looking into the various allegations of misappropriation and financial irregularities etc. It is then that the petitioners have come forward with such a mischievous petition with the sole intention of upsetting what has been done in the interests of the institution. Greed for power has no bounds. R.P.1023/2012. 27 26. True, learned Senior Counsel appearing for the petitioners pointed out that the efforts put in by the first petitioner have been greatly appreciated in the past and therefore the remarks were not warranted. Being a lawyer of high standing, it is contended that this court should have refrained from making the remarks. The remarks were made after taking note of the conduct of the first petitioner and also the fact that he was not amenable to any viable method by which the internal bickerings could be resolved and a method could be adopted for the smooth running of the institution. Being a lawyer, he should have helped the court to arrive at a just and proper decision, but instead at every stage he was putting up staunch blocks and the only attempt was to see that the chaos continued so that he could take advantage of it. As has already been noticed, being a person associated with school and being at its helm of affairs for a long period, one would have expected a more sober and reasonable approach from the first R.P.1023/2012. 28 petitioner. Being a lawyer of long standing, he should have realised his obligation to the court and his duty to see that the disputes are amicably resolved. Instead, he embarks on a destructive path. The filing of the present petition on untenable and false grounds justifies the observation made by this court against the first petitioner. His attitude indicates that he is least concerned with the affairs of the School, but more concerned with retaining power. This is more evident from the filing of the present petition also. In fact this is a fit case where exemplary costs should be ordered to be paid by the petitioners. However, judicial propriety and discipline restrains this court from taking such a harsh step. This Review Petition is misconceived and without merits and it is accordingly dismissed without costs. ## **P. BHAVADASAN, JUDGE** sb.