9911796707
TMI Blog1977 (6) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... As on account of old age she was suffering from various ailments, for occupation of herself, as also of the said daughters' families the suit premises were reasonably required by her as the accommodation she had was insufficient for the purpose. 3. The suit was contested by the Defendant and in the course of the proceeding the Plaintiff died and the Petitioners were substituted in her place. Thereafter the suit was decreed by the trial court and the decree was affirmed on appeal. In the second appeal preferred therefrom, I held following the decision in (1) Sm. Phoolrani and Ors. v. Sk. Naubat Rai Ahluwalia, AIR 1973 SC 2110, the cause of action o the suit, which was the personal requirement of the Plaintiff, was personal and her right to sue did not survive to the substituted Plaintiffs in the absence of the deceased Plaintiff. The appeal was accordingly allowed and the suit was dismissed by the judgment dated November 30, 1973. 4. On September 17, 1976, the Petitioners filed this application stating that the Supreme Court by its judgment in (2) Shantilal Thakurdas and Ors. v. Chimanlal Maganlal Telwala, dated August 23, 1976, since reported in AIR 1976 SC 2358 overruled th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 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. 8. In (5) Ravella Krishnamurthy v. Yarlagadda, AIR 1933 Mad 485 the court observed that for review on ground of discovery of new and important matter, such matter must be existence at date of decree. In (6) Lachhmi Narain v. Ghisa Bihari, AIR 1960 P&H 43, it has been laid down that once a case is decided, it is hardly permissible to review that decision on the mere ground that subsequent to its date, another decision has been given, the ratio of which may induce the court to change its previous view. 9. In (7) A. C. Estates v. Serajuddin & Co. and another, AIR 1966 SC 935, the Supreme Court observed that in case of review under Order 47 of the Code of Civil Procedure on ground of discovery of a new and important matter, such matter has to be something which existed at the date of the order and there can be no review of an order which was right when made on the ground of happening of a subsequent event. 10. Relying on these authorities, Mr. Mukherjee submitted that the subsequent j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny case, an error patent on the face of the record. The Court was of the opinion that it made no difference whether the binding authority demonstrating the error was a decision rendered before or after the impugned judgment. A judicial decision, it was held, only declares a law and does not make or change it and law does not change with changing judicial construction. When decisions taking a different view are overruled or dissented from, all that is done is to declare that these decisions were wrongly decided. The position, it is said, is analogous to a statute which changes the law with retrospective effect which has been held to be good ground for review. 14. In Kuttan's case, reliance was placed on the decision in (10) M. K. Venkatachalam, I.T.O. v. Bombay Dyeing & Manufacturing Co. Ltd., AIR 1958 SC 875 where the court was considering the effect or retrospective amendment of Section 18-A(5) of the Income Tax Act, 1922. By an order dated October 2, 1952, the Income-tax Officer granted in the assessment order a credit of about Rs. 50000/- to the Respondent company as representing interest on the amount paid on the whole advance under Section 18A. By an amendment Act of 1953 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is rendered. 16. The Supreme Court on appeal in (12) Raja Shatrunjit (dead) by his legal representatives v. Mahammad Azmat Amim Khan and others, AIR 1971 SC 1474 observed: The ground of review are the discovery of new matters 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 the review is asked for on account of some mistake or error apparent on the face of record?. The Court referred with approval to the following observation of the Privy Council in Katagirl's case approval to the following observation of the Privy Council in Katagirl's case cited earlier. The section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event. It was further held that a decision contrary to a provision of law introduced with retrospective effect would be an error on the face of record. But as the amending provisions gave power to court passing the decree to rectify the decree, notwithstanding any thing in the Code of Civil Procedure, 1908 or any other law, the instant application was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this is not the position in law. The position will now have to be examined. 21. As to discovery of a new of important matter or evidence we have seen that the consistent and uniform view taken by the Judicial Committee and reiterated by the Supreme Court is that such matter or evidence must be in existence at the time the decree or the order was passed or made. Further, Order 47 does not authorise a review of a decree or order which was right when passed or made on the ground of happening of a subsequent event. In the case of legislation amending a law with retrospective effect rendering erroneous on the face of the record the judgment or order under review the Supreme Court in Bombay Dyeing's case noted that the order of assessment, which by then did not attain finality, was and continued to be liable to modification in view of the powers of rectification of such order by the appropriate authorities on their own motion within specified periods and accordingly no objection against rectification was sustainable. In Azim Khan's case the provision for rectification of the decree was in the amending Act and it was held that the applications were not under Order 47 of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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