Source: Calcutta High Court

Why in News?

Recently, the Calcutta High Court in the matter of Everest Infra Energy Limited. v. Transmission (India) Engineers & Anr., has held that a judgment which fails to consider a precedent which was available at the time of pronouncing the judgment but was not shown to the Court, is not reviewable.

What was the Background of Everest Infra Energy Limited. v. Transmission (India) Engineers & Anr. Case?

• In this case, the applicant seeks review of a judgment and order dated 5th March 2021 arising out an arbitration petition filed by the award-debtor (respondent in the present application). The review applicant is the award-holder.
• The judgment and order dated 5^th March 2021 was passed in an application by the judgment debtor for stay of the award.
• The award-holder was restrained from taking any steps for execution of the award on the compliance of the directions by the award-debtor.
• Learned counsel appearing for the review applicant / award-holder submits that the Court directed the award-debtor to secure only the principal amount and not the interest component of the award.
• Learned counsel appearing for the respondent award-debtor submits that the review application is not maintainable since there is an absence of any error apparent on the face of the judgment.
• Counsel for the respondent relies on Explanation to Rule 1 of Order XLVII of the Code of Civil Procedure, 1908 (CPC) to urge that it cannot be a ground for review of the judgment.
• Accordingly, the review petition was dismissed.

What were the Court’s Observations?

• A single bench of Justice Moushumi Bhattacharya observed that a judgment containing an erroneous point of law is not reviewable; it is an appealable judgment. A judgment pronounced on a question of law which is subsequently reversed or modified by a superior Court is also not a reviewable judgment.
• It was further held that a judgment which fails to consider a decision which was available at the time of pronouncing the judgment, but was not shown to the Court, by the same logic, is not reviewable on the ground of being per incuriam. Such a judgment would be open to challenge before a superior Court. Explanation to Rule 1 of Order XLVII of CPC preserves the finality of a decision even where the question of law is subsequently unsettled by a superior Court.

What is Rule 1 of Order XLVII of CPC?

• Order XLVII of CPC deals with review.
• Rule 1 of Order XLVII deals with the application for review of judgment.
• It states that —

(1) 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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.

Explanation. —The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.