SATYESH DUTT MISRA Vs. MUNNOO DEVI KAHAR

JUDGEMENT

(1.) THIS is an application made by Sri Satyesh Dutt Misra (hereinafter called the applicant) for the stay of the execution of the ejectment part of the decree until the review application made by the applicant has been disposed oi.

(2.) OUR brother, Lakshmi Prasad, had dismissed a second appeal filed by the applicant on the ground that no question of law was involved in that appeal. The only question that was urged before Lakshmi Prasad, J. was whether the house in dispute was constructed in 1960 or earlier He was of the opinion that the question was one of pure fact. He felt himself bound by the finding recorded by the first appellate Court that it was constructed in 1951. After the judgment had been sealed and signed on 26th July, 1967, the applicant made an application for the review of that judgment on 4th of August, 1967. The ground on which the review application is founded is that a learned single Judge of this Court (Dhawan J.) has in Khiva Ram v. Prabha Devi, 1965 All LJ 1045, held while dealing with a similar question that it was a finding in respect of a jurisdictional fact and could be reopened in second appeal. Lakshmi Prasad. J. was of the opinion that there are no merits in the review application and that he did not agree with the decision recorded by Dhawan, J. in Khiva Ram v. Prabha Devi (Supra). He was also of the opinion that Chaube Jagdish Prasad v. Ganga Prasad. AIR 1959 SC 492, on which Dhawan J., relied was not applicable to the facts of the case and was clearly distinguishable. But in view of the existence of 1966 All LJ 1045 (Supra), Lakshmi Prasad, J. thought that the proper thing to do would be to refer the matter to a Bench so that the correctness or otherwise of 1966 All LJ 1045 (Supra) may be decided. The order passed by him reads:--

(3.) THE Court at present is not seized of the matter relating to the merits of the controversy, but only whether or not the order of Lakshmi Prasad, J., dated 26th July 1967 should be reviewed. Until it is reviewed the rights between the parties stand fully and finally adjudicated upon and nothing can be done by this Court to distrub those rights. There is in favour of the respondent a valid decree passed by the first appellate Court which has become final. He has valuable rights under that decree and he cannot be divested of those rights even temporarily only because a review application has been made in this Court. Whether or not the review application is competent is another matter, but the question is that before we deprive the respondent of the fruits of his decree, which has become final we must have some legal provision on the basis of which we can take this extra-ordinary step. Learned counsel has not pointed out to us any provision of law under which the instant application can be held competent. All that he could say was that such an application would lie under Section 151, Civil P. C. Section 151, Civil P. C., only reiterates the general principle that every Court has inherent powers to make such orders as may be necessary in the interest of justice or to prevent abuse of the process of the Court. In view of the circumstance that the decree of the respondent against the applicant has become final not having been interfered with by this Court, it can neither be in the interest of justice nor can it be to prevent abuse of the process of the Court to suspend the operation of that decree which is in all respects effective and binding. Actually, if we disturb a decree already passed by a competent Court we would ourselves be committing an abuse of the process of the Court and would be passing an order which can never be in the interest of justice.