1986 PLP 1400 (CLC)

7. The case of Ch. Muhammad Taj, the learned counsel for the petitioners, is that the decree being joint, after the compromise by two decree‑holders, it has become inexecutable and, therefore, the review petition is necessarily to be accepted by setting aside the decree. Provisions of Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, and Order XLVII, rule 1 of the Code of Civil Procedure are relied upon to contend that the review can be granted for any sufficient reason. The compromise effected after the decree, according to Sh. Taj, creates sufficient cause to attract wide powers of the Court to undo the inexecutable decree. Order XLVI, rule 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, and Order XLVII, rule 1 of the Code of Civil Procedure may profitably be reproduced. Order XLVI rule, 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, reads as under:‑ "Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record." Order XLVII, rule 1 of the Code of Civil Procedure provides:‑ "Any person considering himself aggrieved:‑‑ (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time‑ when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him,, may apply for a review of judgment to the Court which passed the decree or made, .the order."

8. Agha Ashiq Hussain, the learned Advocate appearing on bena of other side, ' opposes the acceptance of the review petition, inter alia,on the following grounds:‑ (i) that the compromise was effected after the judgment and decree and even prior to the admission of the review petition for regular hearing and the settled law is 'that any incident after the‑ judgment cannot be made a valid ground for review. His case is that the question as. To whether the deeree‑being indivisible can be executed is beyond. the province of this Court as it would amount U rehearing the appeal‑ for‑ which, after the decision, the Court his become functus officio; (ii) that the compromise, if valid, may possibly be pressed into .service 0,uring the executing proceedings and not by way of a review' 'The Court, after the judgment and decree retains no control over the' case anti r therefore, to take into consideration any event after the judgment and decree is not permissible. A review, the learned counsel contends, can be granted on mistake apparent on th2 face of the record or for sufficient reasons but any such event must be shown to be present prior to the finalization of the case and not thereafter. To support his view point, the learned counsel has made a reference to rule 3 of Order XXIII of the Code of Civil Procedure which reads:‑‑ "Where it is proved to the satisfaction of the Court that a suit has been adjusted or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject‑matter of the suit, the Court shall pass a decree in accordance therewith so far as it relates to the suit." According to the learned counsel only a lawful compromise and that too during the pendency of the suit or appeal is visualised under the above provisions of the Code of Civil Procedure. Any compromise arrived at after the judgment, and decree cannot ‑be recorded for the adjustment of the suit r appeal as the Court becomes functus officio.

9. After giving my dispassionate thought to the arguments advanced at the bar, my considered view is that the Court is incompetent; except rectifying the clerical wrong, to pass any order by way of a 8 review or even in exercise of its inherent powers after the decision of the case in civil matters. My reasons are:‑‑ (a) Once a judgment has been pronounced the decree will follow in terms of the judgment under section 33 of the Code of Civil Procedure and, therefore, after the pronouncement of the judgment the Court ceases to have any jurisdiction to act even in exercise of its inherent powers, to alter the judgment in substance or to interfere with the decree. No doubt there is a case 40 I A 151 wherein their Lordships of the Privy Council have held that a Court can act under its inherent powers as provided by section 151 of the Code of Civil Procedure to set aside the dismissal of a suit against a plaintiff who had died before hearing of the suit. However, in that case the suit had been dismissed in default and it was observed that the provisions of Order IX of the Code of Civil Procedure would not apply in those circumstances. The case before me, however, is distinguishable because in the case, referred to above, the circumstances unlike the present case warranted exercise of inherent powers of the Court as they were already present when the order disposing of the suit was passed. In the case before me the parties entered upon the compromise after the institution of the review petition which was not even accepted for regular hearing. Still another case reported as Krishnaji Vinayak Melapurkar v. Motilal Magandas Gujarati A I R 1929 Bom. 337 contains different view. But that again is a case dealing with altogether different situation. In that case the trial Court had refused to join a person as a co‑plaintiff but at the time of drawing up the decree that person was shown as co‑plaintiff on the strength of a decree obtained by him on the basis of a compromise in another case. .'In these circumstances it was observed that the Court was incompetent to amend and modify its decree according to the circumstances as they stood at the time of passing the decree. (b) In the instant case as the compromise was not in existence at the time of the disposal of the appeal, it cannot form a valid ground for a review: 'This approach to me appears to be consonant with sound reasons and common sense because if an unsuccessful party be at liberty to apply for a review of a judgment on a compromise, subsequently made by his opponents, there may be a flood of applications in the Courts and the decree would rarely become final. Therefore, it would be legitimate to say that a review petition cannot be accepted on a D ground which was not in existence at a time when a decree was made. In an application for review of the judgment on the ground of sufficient cause the only material dates for consideration of the Courts, therefore, is the date on which the suit was filed and the date on which the. judgment was pronounced. The decision in this case by this Court was made on 28‑1‑1985 and any compromise thereafter obviously cannot beI construed to be a sufficient cause for a review. .(c) It may be argued that a compromise after the decision has created a sufficient cause to review the judgment. The law, as I understand, is well‑settled that sufficient ground or cause, as said earlier, must be shown to exist at the time a decree was passed and not thereafter. Besides; sufficient cause must be analogous to the provisions of Order XLVII of the Code of Civil Procedure. Any subsequent event, therefore, would not form a valid base for review. Precisely, the legal position which is to be accepted, therefore, is that any ground cannot apply to an event which was not in existence at the time of the decree. A review petition, thus, cannot raise a grouse which was not in existence at the trial. I am fortified in my view in Sarat Kumar Roy v. Sripati Chatterjee and others AIR 1919 Cal. 287, Chhajju Ram v. Neki and others A I R 1922 P C 112, Sarfaraj Khan v. Ramchandra and others AI R 1924 Nag. 70, Neki and others v. Chajju Ram and others 48 1 C 137 and Abdul Aziz v. The State 1985 S C M R 1666. In Sarat Kumar Roy v. Sripati Chatterjee and others A I R 1919 Cal. 287 it has been observed:‑‑ "The law does not authorise review of a decree which was right when it was made, on the ground of the happening of some subsequent event. The ground on which a decree may be reviewed must at any rate be something which existed at the date of the decree." In Chhajju Ram v. Neki and others A I R 1922 P C 112 it was held:‑ "Rule I of Order XLVII must be read as in itself definite of the limits within which review is today permitted, and that reference to practice under former and different status is misleading. So construing it they interpret the words 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously." In Sarfaraj Khan v.Ramchandra and others A I R 1924 Nag. 70, it has been held:‑ "For, it is settled law that the grounds for a review must be something which exist at the time of the decree and there is no authority that review can be granted because of the happening of some subsequent event." In Neki and others v. Chajju Ram and others 48 I C 137 it has been observed:‑ "Section 623, Civil Procedure Code of 1882, does not authorize a review of a decree which was right when it was made on the ground of the happening of some subsequent event. The proper course in such cases is to request the Court to accept additional evidence regarding the subsequent event and the Court is justified in taking such evidence into consideration." In Abdul Aziz v. The State 1985 S C M R 1666 it has been held:‑ "We are afraid, we are unable to interfere in the matter because the petitioner has not been able to show any error apparent on the face of the record." It would thus appear that the observations in the above cases are clearly relatable to the proceedings during the pendency of the suit and cannot be taken to mean that events which have happened subsequent to the passing of the judgment and decree are to be reflected in the judgment by the process of review. I endorse the view taken in the above cases. (d) Sher Muhammad and others v. Khuda Bux and another P L D 1961 (W.P.) Lah. 579 is another authority on the point. In that case it has been observed by Mr. Justice Shabir Ahmed, J. (as he then was) that "after a Court has disposed of matter, it ceases to be .seized of it, and cannot, therefore, exercise the powers under section 151 which were vested in it for as long as the matter was pending before it." Muhammad Siddique and Muhammad Latif, the two compromises, no doubt are pro forma defendants and figured as decree‑holders in "for any other sufficient reason". No doubt there are cases which go to show that wide discretion must be given to the Courts in determining what is good and sufficient reason for admitting a review but there is the highest authority with the proposition that the words "for any sufficient reason" in the Code of Civil Procedure do not apply and cannot apply to something which came into existence after the decree was made. In the case Kotaghiri Vebnata Subnammarao v. Vellanki Venkatammarao 24 M.I.A. their Lordships of the Privy Council remarked that section 623, Code of Civil Procedure, would only apply when the ground to review existed at the date of the decree and the section does not authorise the review of a decree which was right on the date when it was passed on the ground of happening of some subsequent event. In herent powers also cannot be invoked as it will be, in fact, misuse of the powers especially when it is expressly forbidden by the legislation to entertain such applications. Sudananda Moral and others 17 v . Rakhal Sana and others A I R 1927 Cal. 920 is a case in support of my view point. In that case it has been observed:‑ "A ground for review must, at any rate, be something which existed at the time of the decree and the section does not authorise review of a decree, which was right, on the happening of some subsequent event. Therefore, the mere reversal of the judgment which was put in as a piece of evidence in the suit that reversal having taken place subsequent to the decision of that suit is not a ground for review." Similar view prevailed in Sarfaraj Khan v. Ramchandra and others A I R 1924 Nag. 70 wherein, it was found that it is settled law that the‑ grounds for a review must be something which exist at the time of the decree and there is no authority that the review can be granted because of the happening of some subsequent event such as alteration of law etc." For the view which I have taken in the matter, this review petition stands dismissed. However, the question involved may be taken K during the execution proceedings. A . A . Review petition dismissed.