Sri. Satish Pai Vs Smt Akkayamma

THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE JUDGMENT RENDERED IN RFA NO.32/2007 BY THIS HON'BLE COURT DISMISSING THE APPEAL ON 02.01.2018 AND SET ASIDE THE SAME AND GRANT A DECREE AS PRAYED FOR IN THE INTERESTS OF JUSTICE & ETC.

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THIS PETITION, COMING ON FOR FURTHER ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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This review petition is filed under Order XLVII Rule 1

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read with 114 of Code of Civil Procedure 1908, by the appellant seeking to review the judgment dated 02.01.2018 passed in RFA No.32/2007.

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Heard.

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Learned counsel for the petitioner-appellant

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submits that there is an error in judgment under review, as it has not ordered for refund of advance sale consideration paid by appellant-plaintiff on the ground that no relief was sought for refund of the advance amount. It is submitted that there is further error in the order under review, as the Court has failed to appreciate that it has the power to order for refund suo moto in the absence of an application. It is further submitted that allowing the respondents-defendants to retain the advance amount would amount to unjust enrichment. It is also submitted that now the application I.A.No.2/2019 is filed seeking for amendment of the plaint with a prayer to direct the respondents-defendants to refund a sum of Rs.2,75,000/with interest and an application I.A.No.1/2019 seeking condonation of delay in seeking review. Hence, he seeks to allow the applications by reviewing the judgment dated

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02.01.2018 by directing the respondents to refund the advance amount.

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The records indicate that the review petition stood abated against respondent No.1; respondents No.2(a) to (c) are served and unrepresented.

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We have heard the learned counsel for the review petitioner, meticulously perused the material available on record.

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The judgment under review clearly indicates that the appellant-plaintiff filed a suit on 13.10.1997 and on that day, the suit schedule property was already sold in favour of one Sri.Munegowda vide registered sale deed dated 26.07.1995. The Court further observed that the suit for specific performance was not maintainable in respect of suit schedule property against defendants No.1 & 2 as they were no longer the owners of the suit schedule property and the appellant-plaintiff has not impleaded the subsequent purchasers as party to the suit and no relief is

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sought against them in this regard. It is further observed that the alternate relief of refund of advance sale consideration was also not sought in the suit or in the appeal and the appeal was dismissed vide judgment under review.

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The findings recorded by the Co-ordinate bench of this Court in the judgment under review is on appreciation of the facts & law and the Court has come to the conclusion that the appellant-plaintiff has not filed any application seeking for alternate relief of refund of advance sale consideration in the suit or in the appeal. The filing of application in the review petition seeking for refund of advance amount by seeking to amend the plaint would not arise. The right to seek amendment available under proviso to Section 22(2) of the Specific Relief Act, 1963, is not available in the review proceedings. This view of ours gains support from the decision of Hon'ble Supreme Court

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in the case of Desh Raj and others vs. Rohtash Singh¹ ,

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wherein at paragraph No.36 reads as under:

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" 36. Applying these principles to the facts of the case in hand, we find that the respondent has neither prayed for the relief of refund of earnest money in the original plaint nor he sought any amendment at a subsequent stage. In the absence of such a prayer, it is difficult to accept that the courts would suo motu grant the refund of earnest money irrespective of the fact as to whether Section 22(2) of the SRA Act is to be construed directory or mandatory in nature."

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In view of the same, the question of suo moto order for refund of advance amount would not arise. Therefore, in view of the settled position of law we do not find any error apparent on the face of the record calling for interference in the impugned judgment dated 02.01.2018, accordingly the review petition is dismissed . Consequently, pending applications stand rejected.

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR/List No.: 1 Sl No.: 11

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1 (2023) 3 SCC 714

Sri. Satish Pai v. Smt Akkayamma

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Sri. Satish Pai v. Smt Akkayamma

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