(This review petition is filed u/o 47 Rule 1 of CPC. Praying for review of the order dated 19.6.2008 passed in CRP 1546/2004, on the file of the Honble High Court of Karnataka. Bangalore.)

The present review petition is filed under Section 114 r/w Order 47 Rule 1 of CPC by the petitioner in C.R.P.No. 1546/04 on the file of this Court seeking review of order dated:19.06.2008 dismissing the said revision petition. There has been delay of about 268 days in filing this review petition and therefore the petitioner herein has filed an application (Misc.Cvl.6941/2009) seeking condoning of said delay.

2. Heard the arguments of Sri. Rajgopal. Learned counsel for the review petitioner and Sri. M. Shivappa. Learned Senior counsel appearing for the respondent and perused the order of this Court dated:19.6.08 passed in C.R.P.No.1546/2004 which is sought to be reviewed. Also perused the affidavit sworn to by Sri. Ganesh, the next friend of the review petitioner in support of the application for condonation of delay.

2. Stated in brief. Facts leading to the present review petition are as under:-

a. The respondent M. Manju obtained an ex-parte decree dated: 5.10.2001 in O.S.No.62/2000 on the file of the learned Addl. Civil Judge (Sr. Dn) Mandya. Against the review petitioner-defendant for specific performance. The respondent plaintiff filed Execution Case No. 50/2002 seeking execution of the said decree. The Execution Court allowed the said Execution petition and consequently the plaintiff got the sale deed dated:30.1.2003 executed through Court in his favour in terms of the said decree.

b. Thereafter. On 21.2.2003, the review petitioner-defendant filed his application under Order 9 Rule 13 in Misc. 6/2003 on the file of the learned Addl. Civil Judge(Sr.Dn.). Mandya seeking setting aside of the said ex-parte decree dated:5.10.2001 passed in O.S.No.62/2000. The said application came to be allowed by the Trial Court by its order dated:7.10.2004 and the said exparte decree came to be set-aside.

c. Aggrieved by the said order of Trial Court. The plaintiff filed CRP No.1546/04 before this Court. After hearing both the parties. this Court. by the order dated:19.6.2008 allowed the said CRP (1546/04) on some technical ground and thereby set aside the order dated:7.10.2004 passed in Misc.No.6/2003 by the Trial Court on the application of the defendant filed under Order 9 Rule 13 CPC in the said suit. It is this order of this Court. Which is sought to be reviewed in this petition.

3. The points that arise for my consideration in this review petition are as under:

(i) Whether the delay of 268 days caused in filling this review petition deserves to be condoned as prayed for in Misc.Cvl.6941/2009 filed under Section 5 of the Limitation Act by the Review Petitioner:

(ii) Whether the order dated:19.6.2008 passed in CRP No. 1546/04 on the file of this Court allowing said CRP deserves to be reviewed as prayed for in the present review petition.

My findings on both the points are in the affirmative for the following.

REASONS

4. point No.(i). The petitioner Lakshmana is represented by one Ganesh as his next friend. At the outset. Sri. M. Shivappa. The learned Senior counsel for the respondent plaintiff strongly contended that said Ganesh who is respondent No.2 in CRP No. 1546/2004 has no authority whatsoever to represent said Lakshmana who is first respondent in the said CRP (No. 1546/04) and therefore the present review petition deserves to be dismissed on this ground only. On perusal of the records in CRP No. 1546/2004. it is seen that the first respondent Lakshmana therein had been represented by G. Ganesh as is next friend and it is the said Ganesh who has signed the Vakalath on behalf of the said Lakshmana and the said vakalath was accepted by this Court. Therefore, the submission of M. Shivappa. Learned Senior counsel that the said Ganesh has no authority whatsoever to represent the review petitioner Lakshmana cannot be accepted.

5. Sri. Rajgopal. Learned counsel for the review petitioner. Placing reliance on several decisions of Honble Supreme Court. contended that the next friend of review petitioner has explained in his affidavit sworn to in support of the application for condonation of delay of 268 days caused in filing the review petition. By producing relevant documents and therefore the said delay deserves to be condoned.

6. Per-contra, Sri. M. Shivappa. Learned Senior counsel for the respondent plaintiff strongly contended that the explanation given by the said Ganesh that his wife was ailing and therefore he could not file the review petition within the period of limitation cannot be accepted. Inasmuch as. His wife is not a party to either CRP No. 1546/04 to in any proceedings connected with O.S.No.62/2000.

7. The substance of the statements in the affidavit sworn to in support of the application for condonation of delay is as under:

(i) CRP No. 1546/2004 came to be allowed by this Court by order dated:19.6.08 and as such, the review petition was to be filed within 30 days from the date of the said order:

(ii) The next friend of the petitioner viz., Ganesh is none other the son of elder brother of petitioner Lakshmana and as such. The petitioner Lakshmana has been under the care and custody of Ganesh. Smt. Rama Devi. The wife of the next friend Ganesh fell ill during February 2008. She has been suffering from proliferative diabetic Retinopathy with macular tractional retinal detachment and therefore she underwent continuous treatment form 20.8.08 as out patient at Narayana Nethralaya in Bangalore City. The next friend Ganesh, being her husband, was to look after her.

(iii) The discharge summary, Photostat copy of which is produced by the review petitioner reveals that Mrs. Rama Devi, aged about 43 years, the wife of the next friend Ganesh underwent operation on her left eye on 20.2.2008. Another certificate issued by Dr. Naresh Kumar Yadav. Narayana Nethralaya dated:5.5.08 shows that the said Mrs. Rama Devi was treated by the said Doctor from 20.2.2008 for her said illness. Another certificate issued by the Doctor at Church of South India Hospital, Bangalore reveals that the said Rama Devi was admitted in the said hospital on 11.9.08 and she came to be discharged on 15.9.08. Another certificate issued by Sri Jayadeva Institute of Cardiology, Bangalore further reveals that Smt. Rama Devi was admitted in the said hospital on 19.9.08. Inpatient No.204726 for her heart problem.

8. All the above said documents clearly go to show that the wife of the next friend Ganesh was suffering from various ailments during the period from 20.2.08 to 19.9.08. I do not find any reasons to disbelieve the statement made by Ganesh in his said affidavit that he was to look after his wife during the said period and therefore he could not file the present review petition within the period of limitation.

9. Honble Supreme Court has observed in the case of STATE OF BIHAR VS MAMESHWAR PRASAD SINGH reported in AIR 2000 SUPREME COURT 2306, relied upon by the learned counsel for the review petitioner. As under:-

(A) Constitution of India, Art. 136 Promotion Special Leave petition Delay in filling petition Condonation, of sufficient cause Promotion of Police Officer on officiating basis Order in writ petition filed by Police Officer directing authorities to consider his case for fixing seniority treating date of officiating promotion as relevant date Contempt petition also filed when directions were not complied with Order as aforesaid could not be challenged by authorities allegedly due to fear of contempt and various coercive orders passed by High Court Several Writ petitions filed for grant of similar benefits on ground of said order Claim by authorities that order was passed in violation of law and if implemented would adversely affect more than 250 officers and likely to upset entire cadre of Dy.SP. of Police in the State Delay of 679 days in filing Special Leave petition condoned by Supreme Court holding that sufficient cause was shown by petitioners.

Para 11: Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCR 387 [LQ/SC/1987/214] : (AIR 1987 SC 1353 [LQ/SC/1987/214] ) held that the expression sufficient cause employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realized that

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot

Claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legilze injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

10. Following the above observations of the Honble Supreme Court. I am of the opinion that the delay of 268 days caused in filling the present review petition deserves to be condoned by allowing Misc.Cvl.No.6941/09 the application for condonation of delay. Hence, Point No.(i) is answered in the affirmative.

11. Point No.(ii): The following facts, as borne out from the records, are not in dispute:

a. The decree dated:5.10.2001 that was obtained by respondent complainant in O.S.No.62/2000 was an ex-parte decree. Since the said decree was for specific performance, the respondent plaintiff got the same executed and consequently, the Sale Deed came to be registered in his favour through the officer of the Court on 30.1.2003.

b. The review petitioner-defendant filed his Misc. 6/2003 under Order 9 Rule 13, seeking setting aside of the said ex-parte decree, on 21.2.2003 i.e., about three weeks after the said sale deed came to be executed.

c. Though the said decree was fully satisfied, the learned Addl. Civil Judge(Sr.Dn.) Mandya, before whom Misc. 6/2003 was filed by the defendant in the said suit (review petitioner herein) allowed the said application and set aside the ex-parte decree passed in the said suit.

d. Aggrieved by the said order of the learned Addl. Civil Judge. CRP No.1546/2004 was filed by the present respondent plaintiff.

e. This Court allowed the said CRP by its order dated:19.6.2008 only on the technical ground that the when Misc. No.6/03 dated:21.2.03 was filed by the defendant u/o 9 Rule 13 CPC. The decree which was sought to be set aside had already been fully satisfied by reason of registration of the Sale Deed dated:30.1.03 and therefore the said Misc. 6/03 filed under Order 9 Rule 13 by the defendant therein had become infructnous and hence, the said Misc. 6/03 was not maintainable. It is pertinent to note that this Court did not pass the order dated:19.6.08 on merits.

12. In view of the above facts which are in dispute. Sri. Rajgopal, learned counsel for the review petitioner, placing reliance on the decision of this Court in the case of GOPALAKRISHNA HOLLA AND OTHERS Vs NARASIMHA BHAT, SINCE DECEASED, BY L.RS. AND OTHERS reported in 1995 (4) Kar.L.J. 468 strongly contended that even if an ex-parte decree is fully satisfied, the application under Order 9 Rule 13 seeking setting aside of the said ex-parte decree would be maintainable and, if the said application is allowed, the defendant would be entitled to restitution. It is laid down by this Court in the said case as under:-

(B) CIVIL PROCEDURE CODE, 1908, ORDER 9, RULE 13 EX PARTE DECREE- Application for setting aside Satisfaction of ex parte decree through execution proceedings no bar for making application It cannot be said that only remedy lies in suit for declaration under Section 34 of Specific Relief Act.

Para 6- The next important question for consideration is whether the petition of this nature filed under Order 9, Rule 13. C.P.C. is maintainable.

Para 7- Mulla in his commentary on Code of Civil Procedure, 13th Edition. Volume I at Page 882 Note 21 has stated as follows:-

The fact that an ex parte decree has been satisfied does not preclude the defendant from applying to the Court for an order to set it aside under this rule.

An identical question came up before the High Court in Calcutta in Keshab Chandra Datta Vs Ballygunge Estate Pvt. Ltd., The Calcutta High Court has observed as follows:-

Even when an ex parte decree has been fully executed it is open to the Court to set aside the decree on proper grounds and if the ex parte decree is set aside on an application under Order 9, Rule 13 of the Principles of restitution laid down in Section 144 of the Code of Civil Procedure would be attracted. The fact that a conveyance has been executed by the Court would not disentitle the defendant from seeking its remedies under Order 9, Rule 13.

Similar question arose before the Bombay High Court in Zendoolal Nandlal Vs Kishorilal Mehtabhai, wherein the Bomb ay High Court has held that the fact that an ex parte decree has been satisfied, does not entitle a defendant from applying to the Court to set it aside under Section 108 of the Civil Procedure Code (Act XIV of 1882) which corresponds to Order 9, Rule 13 of the present Code. I am in respectful agreement with the view expressed by Calcutta and Bombay High Courts.

Para 8 The Supreme Court of India in Binayak Swain Vs Ramesh Chandra Panigraha and Another, has explained the doctrine of restitution in relation to an ex parte decree. The Supreme Court has said that the principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carfries with it the right to restitution of all that has been done under the erroneous decree: and the Court in making restitution is bound to restore the parties so far as they can be restored to the same position they were in at the time when the Court by its erroneous action has displaced them from.

13. Sri. Rajgopal, learned Counsel for the review petitioner placing strong reliance on the decision of the Honble Supreme Court in the case of BOARD OF CONTROL FOR CRICKET, INDIA AND ANOTHER VS NETAJI CRICKET CLUB AND OTHERS reported in AIR 2005 SC 592 [LQ/SC/2005/28] contended that the review petition is maintainable for reviewing the order passed on account of mis-conception of law and fact by Court or an Advocate. The Honble Supreme Court has held in the decision as under:-

(c) Civil. P.C.(5 of 1908), S. 114, O 47, R. 1 Review Application for Maintainable even on account of misconception of law or fact by Court or an Advocate Mistake by Court in nature of undertaking given Can also be a ground for review.

Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in S. 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. Order 47, R. 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and imported piece of evidence or when there exists an error apparent on the fact of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words sufficient reason in O.47. R. 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit. (paras 88, 89 and 90)

14. Thus, it is clear from the decision of this Court in the case of GOPALAKRISHNA HOLLA AND OTHERS VS NARASIMHA BHAT, SINCE DECEASED, BY L.RS. AND OTHERS reported in 1995 (4) Kar.L.J. 468 that even if an ex-parte decree is fully satisfied, the application under Order 9 Rule 13 CPC seeking setting aside of the same filed subsequent to the satisfaction of the decree, would be maintainable. It is also clear from the decision of the Honble Supreme Court referred to supra that if an order is passed on account of misconception of law or fact by the Court, such order has to be reviewed. In the instant case, if the judgment of this Court in the case of GOPALAKRISHNA HOLLA AND OTHERS VS NARASIMHA BHAT, SINCE DECEASED, BY L.RS. AND OTHERS (1995 (4) Kar.L.J. 468) referred to supra was brought to my notice, the said CRP would not have been allowed, without considering its merits, only on the ground that application filed under Order 9 Rule 13 by the defendant in the said suit seeking setting aside of the said ex-parte decree itself had become infructuous by reason of the Sale Deed being executed through Court in favour of the plaintiff therein much earlier to the date of filing of the said application. Since the CRP has not been disposed of by this Court on merits, the order dated:19.6.08 allowing the said revision petition deserves to be reviewed and recalled. Hence point No. 1(ii) is also answered in the affirmative in favour of the review petitioner.

15. For the reasons aforesaid. Misc. Cvl.6941/09 filed by the Review petitioner under Section 5 of the Limitation Act is hereby allowed. Delay of 268 days caused in filing this Review petition is hereby condoned. The present review petition is also allowed. The order dated: 19.6.08 passed in CRP No. 1546/04 is hereby recalled. The said CRP shall be restored to its original file and the same shall be listed for hearing on merits.

16. The application filed by the respondent M. Manju in this R.P.No. 172/09 seeking an order of restraining the respondent from alienating the schedule property shall be placed in CRP No. 1546/04 and the same shall be considered in the said revision petition. In the mean-time, the first respondent shall not alienate the suit schedule property until further orders.