MUTHULANGAYIL KUNHABDULLA Vs. E K PRAKASAN

JUDGEMENT

(1.) This petition is filed under Order XLVII Rule 1 of Code of Civil Procedure to review the judgment dated 5.6.2008 in W.P.(C) 10822/2008. The Writ Petition was filed challenging the dismissal of an application filed under Rule 5 of Order XXXVIII of Code of Civil Procedure in O.S. 71/2007 on the file of Sub Court, Koyilandy. Respondents instituted the suit for specific performance of an oral agreement for sale with an alternate prayer for return of the advance amount of Rs. 20,05,001 with interest at 12% per annum. Writ Petition was disposed quashing the order passed by the trial court and directing petitioner defendant to furnish a security of Rs. 98,40,000/- before the trial court within one month from that date, providing that on failure to furnish security, there would be an order of attachment was also passed which would be in force till the security is furnished. The said order was passed, as is clear from paragraph 2 of the judgment, solely based on the submission of the learned senior Counsel who was then appearing for the petitioner. The relevant portion of the judgment reads:

(2.) The argument of the learned senior Counsel Mr. Krishnanunni for the petitioner is that petitioner did not allege anything against his Counsel and only contended that he could not properly make himself clear to the Counsel and as a result a judgment happened to be passed which is sought to be reviewed. It was argued that the security to be furnished is only for the amount claimed from the petitioner in the suit and as per the alternate relief decree for Rs. 20,05,001/- alone was claimed and therefore security that is to be furnished can only be for that amount and not the market value of the property and therefore the judgment warrants review.

(3.) Learned senior Counsel Mr. Chithambaresh appearing for respondent opposed the application on three grounds. Firstly. It was argued that an application for review by another Counsel is not maintainable as it is a deprecated practice. Reliance was placed on the decision of the Apex Court in Parsion Devi v. Sumitri Devi,, Tamil Nadu Electricity Board v. N. Raju Reddiar, and Mohan Lal Bagla v. Board of Revenue Lucknow,. Secondly it was argued that the ground alleged is not a sufficient ground to order review. Relying on the decision in Parsion Devi s case (supra), it was argued that a review is possible only if there is a mistake or error is apparent on the face of the record and there is a clear distinction between an erroneous decision and an error apparent on the face of the record and what is set out is, if at all, only an erroneous decision and therefore it cannot be reviewed. Finally relying on the decision of the Apex Court in BSNL and Ors. v. Subash Chandra Kanchan and Anr., it was argued that under Order III Rule 1 of Code of Civil Procedure a Counsel is authorised to make concession on behalf of the client and even if that is a wrong concession, unless it is on a question of law it cannot be a ground for review.