BALRAM Vs. GOPI BAI

JUDGEMENT

(1.) IN short the question involved in this miscellaneous appeal preferred under Order 43 rule 1 (w) of CP Code is whether learned trial judge was justified in revoking the earlier order dated 19.10.1993 ? The impugned order is dated 14.7.1997 in civil execution case No. 8/92/6A -79, passed by learned Additional District Judge, Barwah (Mandleshwar). Facts in short are these : Respondent filed a suit (6 -A/79) against the appellant claiming declaration, mandatory injunction, perpetual injunction and also for possession of house in suit. This suit resulted in compromise and a compromise decree in term of compromise application was passed on 29.11.1980.

(2.) THE appellant (defendant) thereafter made an application in -execution proceedings complaining inter alia that the respondent is intending to sell the house in suit thereby violating the term of the compromise. It was complained that in term of decree, the respondent has no right to alleviate the suit house. This application was contested by the respondent but eventually by order dated 19.10.1993, the learned executing Court allowed the application and passed the restrained order against the respondent.

(3.) HEARD Shri A.S. Kutumble, learned counsel for the appellant and Shri Nagendra Purohit, learned counsel for the respondent. Having heard the learned counsel for the parties, I am of the view that impugned order is not liable to be sustained and hence it must go. In my opinion, the learned executing Court ought not to have interfered with its earlier order dated 19.10.1993 invoking its inherent power or powers under section 152 of CP Code. It was an admitted fact that the order dated 19.10.1993 had become final because no appeal was filed by the respondent against this order in the High Court though he had that remedy available to get rid of the said order. The order dated 19.10.1993 therefore held the field. The respondent in the garb of invoking the inherent powers could not have got the entire rehearing like an appellate Court. Perusal of impugned order indicate that learned executing Court had actually gone into the case either as an appellate Court or/and as if it was deciding for the first time. This was something which was not permissible either under section 151 or under section 152 which only empowers the Court to correct the clerical errors. As observed supra, perusal of impugned order clearly indicate that the trial Court virtually went into entire factual aspects of the case and reviewed the entire order. Even if one treat the application to be under order 47 Rule 1 of CP Code even then such investigation of factual aspect was not permissible within the forecorners provided in order 47 Rule 1 ibid. In order to invoke the powers of review the error must be apparent on the face of the record of the case. Factual inquiry simply on assertion of facts contending that the same was not noticed by itself is no ground to revoke the entire order.