[A] Civil Procedure Code, 1908 – Ss. 114, 151, Or. 47 R. 1 – Review – Scope – “Error apparent on the face of the record” – “Any other sufficient reason” – Non-consideration of vital submissions and issues though recorded in the judgment – When amounts to error apparent.
Law on review jurisdiction under S. 114 r/w Or. 47 R. 1 CPC reiterated on the basis of decisions in Sanjay Kumar Agarwal v. State Tax Officer, Kamlesh Verma v. Mayawati, State (NCT of Delhi) v. K.L. Rathi Steels Ltd., Hari Vishnu Kamath v. Syed Ahmad Ishaque, Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, Rajender Singh v. Lt. Governor, Andaman & Nicobar Islands and S. Nagaraj v. State of Karnataka etc. Review lies inter alia when there is a mistake or error apparent on the face of the record or any other sufficient reason analogous to the grounds in Or. 47 R. 1. A judgment cannot be re-heard on merits in review nor can an erroneous decision as such be corrected; but where an issue was raised, arguments were advanced and are recorded in the appellate judgment, yet such submissions having relevance and bearing on the issue involved are not considered or decided, non-consideration of such arguments and failure to record findings thereon constitutes an error of law apparent on the face of the record and also falls within “any other sufficient reason” for exercise of review jurisdiction. (Paras 22–27, 30–37, 39–41, 35, 54, 57(i)-(iii))
[B] Civil Procedure Code, 1908 – Or. 21 Rr. 58, 97, 101, 103, S. 47 – Claim petition by third party / co-sharer in execution – Wrong provision quoted – Effect – Duty of appellate court to consider maintainability submissions.
In execution of a mortgage decree, claim petition under Or. 21 R. 58 CPC filed by review petitioner (daughter of original owner and co-sharer) had been dismissed as not maintainable by Executing Court on the ground that there was no attachment and that she had neither challenged the mortgage nor impleaded mortgagee–plaintiffs in her earlier partition suit. In appeal (A.S. No. 59 of 2020), specific submissions were advanced that (i) review petitioner, not being party to the mortgage deed or mortgage suit, was not required to seek cancellation of mortgage or implead mortgagees in O.S. No. 199 of 2009; (ii) she claimed independent share as Class-I heir under the Hindu Succession Act, 1956 in the E.P. schedule property purchased by her father; (iii) Executing Court, in view of S. 47 r/w Or. 21 Rr. 58, 97, 101, 103 CPC, ought to decide all questions between parties to the suit and persons claiming through them without separate suit; and (iv) even if Or. 21 R. 58 was not the appropriate provision, wrong mention of provision would not render the claim petition non-maintainable if jurisdiction existed under Or. 21 Rr. 97, 101, 103 etc. These submissions were recorded in paras 10–12 of the appellate judgment but not addressed or decided. Held, such grounds were directly germane to the issue of maintainability of the claim petition and could not be treated as irrelevant; non-consideration thereof is an error apparent on the face of the record warranting review. (Paras 5–7, 9–12, 44–45, 49–53, 54, 57(ii))
[C] Civil Procedure Code, 1908 – Or. 41 R. 31 – Appellate judgment – Non-framing of points for determination – Whether, in facts, ground for review.
Contention that the appellate judgment in A.S. No. 59 of 2020 was vitiated for non-compliance with Or. 41 R. 31 CPC (for not framing points for determination) examined with reference to precedents in Union of India v. K.V. Lakshman, H. Siddiqui (dead) by LRs v. A. Ramalingam, K. Karuppuraj v. M. Ganesan, Malluru Mallappa (D) Thr. LRs v. Karuvathappa, Commissioner of Customs v. Canon India Pvt. Ltd., Bhagirathi v. Indradev and Laliteshwar Prasad Singh v. S.P. Srivastava (D). Court observed that while the principle as to framing of points under Or. 41 R. 31 CPC is well-settled, in the present case the appellate judgment itself recorded that “the main question raised is with regard to maintainability of the present application”, and, therefore, the question whether non-compliance with Or. 41 R. 31 per se furnishes a ground for review did not arise on the facts. (Paras 13–20, 56)
[D] Review – Appellate judgment – When liable to be set aside in review – Restoration of appeal.
Where the appellate court records various submissions of the appellant challenging the order of the Executing Court, including grounds as to independent rights in the E.P. schedule property and maintainability of claim petition even with wrong provision quoted, but does not address or return findings on those submissions and dismisses the appeal only on a narrow view of Or. 21 R. 58 CPC, the appellate judgment suffers from apparent error of law. In such circumstances, review is maintainable to prevent miscarriage of justice. Judgment and decree dated 05-01-2022 in A.S. No. 59 of 2020 set aside in review; appeal restored to its original number for fresh decision on merits. No order as to costs. (Paras 42–45, 49–55, 57–59)
ANALYSIS
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Original Mortgage Suit – O.S. No. 98 of 2010
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Filed by respondents 1–4 for realization of money by redemption of mortgage against judgment-debtors including one Pallala Bujjamma and respondents 5 & 6.
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Preliminary decree: 13.11.2011
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Final decree: 05.08.2013
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Execution Proceedings – E.P. No. 50 of 2013
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Filed by decree-holders to sell the suit schedule property and realize the decree amount.
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Claim Petition in Execution – E.A. No. 32 of 2017 (Order XXI Rule 58 r/w S.151 CPC)
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Filed by Palla Chenchu Harikala (review petitioner) claiming 1/4th share in the E.P. schedule property as a Class I heir of late Arjunaiah @ Chenchaiah.
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Her case:
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E.P. schedule property was purchased by her father Arjunaiah @ Chenchaiah.
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On his death (15.12.2000), estate devolved on his widow and children, including her.
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She had already filed O.S. No. 199 of 2009 for partition, in which the E.P. schedule property was item No. 2.
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That suit was decreed on 25.01.2018 allotting items 2 & 3 to her share; item 1 to judgment-debtors 1–3.
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A.S. No. 56 of 2018 against that decree was pending.
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Therefore, judgment-debtors could not have validly mortgaged the entire E.P. schedule property behind her back, and the decree-holders could not bring it to sale without working out her share.
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The Executing Court:
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Rejected her adoption by relying on the lack of proof of adoption and treated her as daughter of Arjunaiah @ Chenchaiah.
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Yet dismissed the claim petition as not maintainable, mainly on the grounds that:
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There was no attachment, so Order XXI Rule 58 CPC did not apply; and
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She had not challenged the mortgage deed nor impleaded the mortgagees in O.S. No. 199 of 2009.
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First Appeal – A.S. No. 59 of 2020
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Filed by the review petitioner against rejection of E.A. No. 32 of 2017.
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A Coordinate Bench of the High Court dismissed the appeal on 05.01.2022, essentially holding that:
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Order XXI Rule 58 CPC deals with adjudication of claims regarding property under attachment,
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The objection here was to sale of mortgaged property and therefore the application under O.21 R.58 was not maintainable.
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Review Proceedings – Review I.A. No. 1 of 2022
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Filed to review the appellate judgment dated 05.01.2022 in A.S. No. 59 of 2020.
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Judgment in Review delivered on 28.11.2025 by Division Bench (RNT, J & MRK, J).
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II. Core Factual Matrix Relevant to Review
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Review petitioner is admitted daughter of late Arjunaiah @ Chenchaiah; Executing Court disbelieved the plea of adoption set up by decree-holders.
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The E.P. schedule property belonged to her father and was part of joint family properties.
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In O.S. No. 199 of 2009, a partition decree recognized her 1/4th share in the properties including E.P. schedule item.
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The mortgage suit O.S. No. 98 of 2010 and mortgage decree were subsequent to filing of the partition suit.
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Her essential grievance: her independent share in the E.P. schedule property cannot be wiped out by a mortgage and mortgage decree to which she was not party.
III. Issues Before the Review Bench
From the judgment, the key issues can be distilled as:
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Scope of Review Jurisdiction:
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When can a High Court review its own appellate judgment under S. 114 r/w Order XLVII Rule 1 CPC?
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Specifically, does non-consideration of vital arguments, though recorded in the judgment, amount to “error apparent on the face of the record” or “any other sufficient reason”?
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Effect of Non-consideration of Appellant’s Submissions in A.S. No. 59 of 2020:
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The Coordinate Bench had recorded detailed submissions of the appellant in paras 10–12, but dismissed the appeal on a narrow view of O.21 R.58 CPC.
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Whether failure to address the recorded submissions constitutes reviewable error.
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Whether other technical contentions warrant review:
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Contention that only I.A. for vacation of interim order was heard, not the appeal.
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Contention that non-compliance with Order 41 Rule 31 CPC (no formal framing of points for determination) itself is a ground for review.
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IV. Exposition of Law on Review – Court’s Survey and Principles
The Bench devotes a large portion of the judgment to clarifying what review is and what it is not, relying on a long line of Supreme Court authorities. The core principles laid down (by synthesizing paras 22–41) are:
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Grounds for Review are Narrow and Structured
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Under S. 114 r/w Order 47 Rule 1 CPC, review lies when:
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There is a mistake or error apparent on the face of the record, or
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There is discovery of new and important evidence not within knowledge despite due diligence, or
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There exists “any other sufficient reason”, which must be analogous to the previous two grounds.
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Review Is Not an Appeal in Disguise
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An erroneous decision cannot simply be “reheard and corrected.”
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Questions already raised, argued, and decided cannot be re-argued in review.
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Review is to correct apparent errors, not to re-open the entire merits.
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Error “Apparent on the Face of the Record”
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It must be self-evident, not requiring long-drawn reasoning.
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But the Court acknowledges, via Hari Vishnu Kamath, that what is “apparent” is fact-sensitive and cannot be defined with mathematical precision.
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Non-consideration of vital issues may amount to such an error.
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Non-consideration of Relevant/Vital Issues as Ground for Review
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From Moran Mar Basselios and Rajender Singh, the Bench derives a key rule (paras 31–37):
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If vital issues raised by a party are not considered at all;
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Or the judgment fails to address material aspects essential to the decision;
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The judgment may suffer from an error apparent on the face of the record and can be reviewed to prevent miscarriage of justice.
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Expanded Meaning of “Any Other Sufficient Reason”
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Following Chhajju Ram, Moran Mar Basselios, Kamlesh Verma and S. Nagaraj, the Bench accepts that:
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“Any other sufficient reason” includes situations where the order was passed under misapprehension, or
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Where non-consideration of vital issues would lead to injustice,
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Provided the reason is analogous to the statutory grounds.
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Justice Over Technicalities
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Relying particularly on S. Nagaraj, the Bench stresses that the Court has a duty to recall or review its orders in rare situations where, due to mistake or non-consideration, irremediable injustice may result.
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Review is not to disturb finality lightly, but finality yields to justice where necessary.
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In short, the Bench carefully reaffirms a classic, conservative view of review—but opens a clear window where non-consideration of recorded, relevant arguments becomes a reviewable defect.
V. Application of Principles to This Case
1. What the Executing Court Had Actually Found
The Executing Court had:
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Held that the review petitioner is indeed daughter of Arjunaiah @ Chenchaiah; the plea of her adoption was rejected.
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Accepted that E.P. schedule property is part of her father’s estate and that she had 1/4th share as per the partition decree in O.S. No. 199 of 2009.
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Still dismissed her claim petition under Order XXI Rule 58 CPC as not maintainable because:
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There was no attachment, and
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She had not challenged the mortgage or impleaded decree-holders in the earlier partition suit.
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So the rejection was essentially technical/maintainability-based, not on denial of her status or share.
2. Submissions in A.S. No. 59 of 2020
The review Bench notes that in the first appeal:
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The appellant argued that:
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She was not a party to the mortgage;
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Therefore, no need to challenge the mortgage deed or implead mortgagees in O.S. No. 199 of 2009.
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Her rights flow from Hindu Succession Act as legal heir of the original purchaser.
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The Executing Court, by virtue of S. 47 r/w O.21 Rr. 58, 97, 101, 103 CPC, had to adjudicate all questions between parties and those claiming through them within execution, without insisting on a separate suit.
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Even if O.21 R. 58 was not technically correct, wrong mention of provision cannot bar maintainability when jurisdiction exists, e.g. under O.21 Rr. 97, 101, 103.
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These submissions were clearly and explicitly recorded in paras 10–12 of the appellate judgment under review.
3. Defect in the Appellate Judgment
However, the Coordinate Bench in A.S. No. 59 of 2020:
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Dismissed the appeal primarily on a short point:
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Order XXI Rule 58 CPC deals with claims in respect of attached property,
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Here the objection was to bringing mortgaged property to sale, so the application was not maintainable.
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The Review Bench finds that:
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The appellate judgment did not deal with these recorded submissions at all.
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No findings were recorded on:
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The effect of the partition decree in O.S. No. 199 of 2009;
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The independent right of the review petitioner as co-sharer;
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The applicability of O.21 Rr. 97, 101, 103 read with S. 47 CPC;
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The legal effect of quoting a wrong provision (O.21 R.58) where another provision could sustain jurisdiction.
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The Bench holds this non-consideration of relevant, germane submissions to be:
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An error of law apparent on the face of the record, and
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Also falling within “any other sufficient reason” for exercising review power.
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In other words, the problem is not that the Coordinate Bench reached a wrong conclusion on the law of O.21 R.58; the problem is that it never engaged with crucial arguments that could materially affect the maintainability analysis.
VI. Treatment of Other Contentions
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“Only I.A. for vacation of interim order was heard, not appeal”
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The review petitioner argued that I.A. No. 1 of 2021 (for vacating interim order) alone was heard.
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The Review Bench rejected this:
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Docket order dated 28.12.2021 showed the appeal was listed “for orders” on 05.01.2022.
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The appellate judgment itself records submissions on merits, indicating the appeal was heard.
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Hence, this ground failed.
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Order 41 Rule 31 CPC (Points for Determination)
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Several Supreme Court decisions on O.41 R.31 were cited on both sides.
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The Review Bench notes:
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The appellate judgment (para 17) records that “main question is with regard to the maintainability of the present application,” which is effectively a crystallized point for decision.
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Therefore, the question whether non-compliance with O.41 R.31 itself is a ground for review did not arise in the present facts.
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So the review is not allowed on O.41 R.31 ground.
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The sole real ground on which review is allowed is non-consideration of recorded, relevant submissions.
VII. Final Holding and Result
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Review Allowed
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The Court holds that:
Non-consideration of arguments advanced which are relevant and germane to the issue involved, though recorded in the judgment, is an error apparent on the face of the record and also a ground falling within “any other sufficient reason” for review.
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Appellate Judgment Set Aside
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The Judgment and Decree dated 05.01.2022 in A.S. No. 59 of 2020 is set aside in review.
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Appeal Restored for Fresh Hearing
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A.S. No. 59 of 2020 is restored to its original number for fresh decision on merits, this time requiring proper consideration of all the submissions recorded in paras 10–12.
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Costs and Miscellaneous Petitions
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No order as to costs.
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Pending miscellaneous petitions, if any, are closed.
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VIII. Doctrinal and Practical Significance
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Clarifies When Review Lies Against an Appellate Judgment
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This decision is a textbook application of the principle that failure to consider vital arguments, even though they are recorded, is itself a reviewable defect.
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The Court distinguishes between:
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Re-arguing what has already been decided (not allowed), and
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Correcting a situation where a point was never adjudicated (allowed).
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Important for Execution Law and Co-sharer Rights
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Though the Bench does not decide the merits of the maintainability in this judgment, it recognizes that:
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A co-sharer / Class-I heir with a partition decree in her favour may have a substantial claim in execution.
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The Executing Court and Appellate Court must at least address her arguments about jurisdiction under S.47 and O.21 Rr. 58, 97, 101, 103 CPC.
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Wrong Provision vs. Lack of Jurisdiction
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The Court reiterates the well-recognized principle: wrong citation of a provision does not oust jurisdiction, if jurisdiction otherwise exists under the statute.
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For practitioners, this underlines that appellate courts must look beyond mere mis-citation and examine substance of the relief and power.
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Review as a Safety Valve for Miscarriage of Justice
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The judgment strongly affirms that review jurisdiction is narrow but real.
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Where important issues are simply not decided, review is the correct procedural remedy, not appeal or SLP alone.
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