R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 17[TH] DAY OF MAY 2022 / 27TH VAISAKHA, 1944** **R P NO.175 OF 2021** **AGAINST THE JUDGMENT DATED 26[TH] JULY 2019 IN MAT.APPEAL NO.** **173 OF 2013** ## **REVIEW PETITIONER/APPELLANTS:** **1 JUSTINE @ JOSEPH, AGED 38 YEARS S/O.MATHEW, VALIYAPAIKATTU HOUSE, ULLANAD P.O., BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM** **2 MATHEW AGED 69 YEARS VALIYAPAIKATTU HOUSE, ULLANAD P.O., BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM** **3 GRACY MATHEW AGED 63 YEARS W/O.MATHEW, VALIYAPAIKATTU HOUSE, ULLANAD P.O., BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM** **BY ADVS. SEBASTIAN CHAMPAPPILLY DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN SMT.MARGARET MAUREEN D ROSE** 2 **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** ## **RESPONDENT/RESPONDENT:** **MAREENA GEORGE, AGED 32 YEARS, D/O.GEORGEKUTTY, PAIKDA HOUSE, KONIPPADU P.O.,** **MELUKAVU VILLAGE, KOTTAYAM DISTRICT** **BY ADVS. SMT.K.SUNITHA VINOD SMT.KALYANI.S.VINOD** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 31.03.2022, THE COURT ON 17.05.2022 DELIVERED THE FOLLOWING:** 3 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** ## **O R D E R** ## Ajithkumar, J This petition for review was filed by the appellants in Mat Appeal No.173 of 2013, under Section 114 read with Order XLVII Rule 1 and 3 of the Code of Civil Procedure, 1908. 2. Mat. Appeal No.173 of 2013 was filed by the review petitioners challenging the judgment in O.P. No.1164 of 2010 on the files of the Family Court, Kottayam at Ettumanoor. The respondent had filed Mat appeal No.90 of 2013 against the said judgment. Both the appeals were dismissed by this Court as per the common judgment dated 26.07.2019. The petitioners preferred a Special Leave Petition before the Hon'ble Supreme Court of India. As per order dated 05.02.2021, the SLP which was registered with Diary No.4489 of 2020 was dismissed. Thereafter, the petitioners filed this petition seeking to review the judgment dated 26.07.2019 on two grounds; firstly, finding that the appellants are liable to return 53 sovereigns of gold ornaments to the respondent is an error, inasmuch as this Court failed to take into account parts of oral evidence of PWs 1 and 4 which would establish that there was no entrustment of gold ornaments with 4 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** the petitioners and secondly, awarding of interest at the rate of 9% per annum is against law. 3. On 16.12.2021, when this matter came up for consideration, the respondent entered appearance through her counsel. Delay in filing the review petition was condoned as per order dated 04.03.2022. 4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents in detail. 5. The only point requiring consideration is whether there is sufficient reason to entertain the review petition? 6. The learned counsel appearing for the petitioners would submit that the Special Leave Petition was dismissed _in limine_ by the Apex Court and therefore there is no bar for filing a review petition in the matter. A copy of the order in the SLP and a copy of the deposition of the respondent who gave evidence of PW1 in CC No.240 of 2011 on the file of the Judicial Magistrate of First Class – I, Pala were produced as Annexure Nos.1 and 2 along with I.A. No.2 of 2021. The documents are received on file. 7. Annexure 2 is a copy of the order of the Apex Court in SLP(Civil)Diary No.4489 of 2020. The order reads, “Delay condoned. The Special Leave Petition is dismissed. Pending 5 **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** application stands disposed of.” The learned counsel would submit that the Apex Court did not consider merits of the SLP and by such a dismissal, leave to appeal was declined. The result is that there has not been a merger of the judgment in Mat appeal No.173 of 2013. Therefore, a review of the said judgment by this Court is legally permissible. The learned counsel appearing for the respondent would submit that the delay in filing the SLP was condoned, for which the Apex Court considered the matter on merits and therefore the right of the petitioners for a review is foreclosed. 8. In **Kunhayammed and others v. State of Kerala and another [(2000) 6 SCC 359]** the Apex Court held that in a case, where a special leave petition is dismissed by a nonspeaking order, it would not be just to deprive the aggrieved person of the statutory right of seeking relief of review before the High Court. Therefore, the fact that the special leave petition filed by the petitioners was dismissed as per Annexure No.2 order by the Apex Court, is not an imprimatur to the right of seeking a relief of review before this Court. In **Khoday Distilleries Ltd.** ## **(Now known as Khoday India Limited) and others v. Sri** 6 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** **Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (under Liquidation) rep. by the Liquidator [2019 (4) SCC 376]** a co-equal Bench of the Apex Court held that the decision in **Kunhayammed** is an elaborate discourse based on well accepted propositions of law and it laid down the correct law. 9. Question is whether or not the Apex Court granted leave to appeal. Once leave is granted and the appeal is received on file, the right to file a review petition is lost. Here although the delay in filing the SLP was condoned, no leave was granted. So much so, dismissal of the SLP was a dismissal _in limine_ . Therefore, in the light of the Principle laid down by the Apex Court in the aforesaid decisions, a review petition in the matter is maintainable. 10. The learned counsel appearing for the petitioner submitted that this Court mistakenly conceived the evidence regarding operation of the locker hired by the 1[st] petitioner and the respondent in their joint name in the State Bank of Travancore resulting in the wrong finding that 53 sovereigns of gold ornaments were entrusted with the 1[st] petitioner, and the same were retained by him. The further contention is that if the assertions of the respondent as PW1 before the Judicial Magistrate 7 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** of the 1[st] Class-I, Pala contained in Annexure 1 were taken into account, this Court would not have taken such a view. Reasonings to enter the finding that the gold ornaments were entrusted with the 1[st] petitioner are contained in paragraph No.12 of the judgment in Mat Appeal No.173 of 2013, which read thus: “12. Thus, the Trial Court came to a conclusion that considering the entire facts and evidence, the respondent was given Rs. 18 lakhs as patrimony from her house and from that amount gold ornaments were purchased for Rs.9,29,399/-. Regarding the bridal costumes, the 2nd Appellant as PW-2 admitted that usual custom is to purchase bridal costumes for the bride, by the bridegroom and party. So the Trial Court found that the 1[st] Appellant is not entitled to reduce any amount under the head of bridal costumes. Therefore, the Trial Court held that the Appellants are liable to return the patrimony amount of Rs. 18 lakhs, and a further amount of Rs.8,70,601/-. As regards the claim of the respondent for gold, the Trial Court held that the Appellants are liable to return 53 sovereigns of gold ornaments or its equivalent value of Rs.12,72,000 (@of Rs.24,000/- per sovereign) and that the Appellants are also liable to return the almirah and dress of the respondent or its equivalent value Rs.70,000/-.” 11. This Court, in the said paragraph, considered the evidence including the admissions of PW1, the 1[st] petitioner in detail. The petitioner cannot be heard to contend that there 8 **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** occurred a mistake in appreciation of evidence as a reason to review the judgment. A judgmental error is not a reviewable error. An error in appreciation of evidence cannot be termed as an error on the face of the record. The question then is, can the versions of the respondent contained in Annexure 1 document be taken into account in order to find whether there occurred an error perceivable from the face of the records in Mat Appeal No.173 of 2013. If Annexure 1 statement contains some admission regarding the subject matter involved in Mat Appeal No.173 of 2013 and the same was produced before rendering the judgment in the appeal, the contentions of the petitioners would have been sound good. Annexure 1, at the best, contains a few statements which go contradictory to the evidence tendered by the respondent in O.P.No.1164 of 2010. Such contradictory statements are only matters of appreciation of evidence and never can be a reason to find there was error on the face of record. 12. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court after referring to **Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372], Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170]** 9 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** ## and **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, [(1979) 4 SCC 389]** held thus: "Under Order XVII Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self - evident and has to be detected by a process of reasoning, 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 XVII Rule 1 CPC. In exercise of the jurisdiction under Order XVII Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be "an appeal in disguise". 13. This principle was reiterated in **Sasi (D) Through Lrs.** **v. Aravindakshan Nair and Others [(2017) 4 SCC 692]** and followed by this Court in **Babu M. and others v. Union of India and others [2017 KHC 647]: [2017 (3) KLJ NOC 13].** 14. A review is possible only if there is an error that strikes on mere looking at the records. If a long drawn process such as, appreciation of evidence by juxtaposing various depositions thereby to find out the evidence given in case in question is reliable or not, is not allowed under the review jurisdiction. Viewed in the light of the law laid down by the Apex Court and this Court in the decisions referred to above, we hold that the first ground 10 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** raised in the Review Petition does not fall within the scope and ambit of Order XLVII Rule 1 of the Code. 15. As per the judgment in O.P.No.1164 of 2010, the Family Court allowed interest at the rate of 9% from the date of decree till realisation of the amounts awarded. The learned counsel appearing for the petitioners would contend that the said order is against the mandatory provisions contained in Section 34(1) of the Code and therefore it is an error in law. Section 34(1) of the Code reads as under: (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. (emphasis supplied) 16. As per Section 34(1) of the Code, the rate of interest that can be awarded to be paid from the date of decree to the date of payment shall not be more than 6% per annum. 17. In that view of that matter, we are of the view that 11 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** interest ordered by the Family Court, which stands confirmed by this Court as per the judgment in Mat. Appeal No.173 of 2013, at the rate of 9% per annum from the date of decree till realisation is an error in law. While fixing the rate of interest for the future period, the Court has discretion, but that discretion shall be exercised within the limits permitted by law. Maximum rate that is allowable is 6% per annum, whereas this Court ordered 9% per annum. Therefore the second ground for review is sustainable. Accordingly, we allow the review petition to the extent that the rate of interest from the date of decree till realisation for the amounts, which this Court has allowed the respondent to realise from the petitioners, shall be at the rate of 6% per annum. ## **Sd/-** ## **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV 12 ## **R.P.No.175 of 2021 in Mat.Appeal No.173 of 2013** ## **APPENDIX OF RP 175/2021** **PETITIONERS' ANNEXURES ANNEXURE-1 CERTIFIED COPY OF THE DEPOSITION OF THE PETITIONER AS PW-1 IN CC NO.240 OF 2011 ON THE FILE OF THE JFCM COURT ,PALA ANNEXURE-2 TRUE PRINT OUT OF THE RECORD OF PROCEEDINGS OF THE HON'BLE SUPREME COURT OF INDIA IN RESPECT OF SPECIAL LEAVE PETITION (CIVIL), DIARY NOS.4489 OF 2020 DATED 5.2.2021**