The Andhra Pradesh High Court has allowed a review petition and set aside a previous appellate judgment, ruling that the non-consideration of relevant arguments raised by an appellant constitutes an “error apparent on the face of the record.”
The Division Bench comprising Justice Ravi Nath Tilhari and Justice Maheswara Rao Kuncheam held that if submissions germane to the issue are advanced and recorded but not addressed by the Court, it furnishes a valid ground for exercising review jurisdiction. Consequently, the Court restored the appeal A.S. No. 59 of 2020 to its file for a fresh decision on merits.
Case Background
The legal dispute originated from a mortgage suit (O.S. No. 98 of 2010) filed by the respondents (Bysani Satish and others) for the realization of a suit amount, which resulted in a final decree. Subsequently, Execution Petition (E.P.) No. 50 of 2013 was filed to sell the scheduled property.
Palla Chenchu Harikala, the review petitioner, filed a claim petition (E.A. No. 32 of 2017) under Order 21 Rule 58 of the Code of Civil Procedure (CPC). She contended that she was the daughter of the late Arjunaiah (alias Chenchaiah), who died intestate in 2000. She claimed a 1/4th share in the property under the Hindu Succession Act, 1956, asserting that the judgment debtors had mortgaged the property without her consent. She further submitted that she had already secured a decree in a separate partition suit (O.S. No. 199 of 2009).
The Executing Court dismissed her claim petition as not maintainable, reasoning that she had not challenged the mortgage deed or impleaded the decree-holders in her partition suit.
Aggrieved by this, she filed an appeal (A.S. No. 59 of 2020), which was dismissed by a Coordinate Bench of the High Court on January 5, 2022. The appellate court held that Order 21 Rule 58 CPC deals with properties attached, and since the objection was regarding a mortgage decree without attachment, the appeal lacked merit.
Arguments in Review
The petitioner sought a review of the judgment dated January 5, 2022. Sri M. R. K. Chakravarthy, counsel for the petitioner, argued that the appellate judgment suffered from an apparent error of law. He submitted that specific arguments raised in the appeal—including the contention that the petitioner, not being a party to the mortgage, was not required to challenge the deed—were recorded in the judgment but not adjudicated.
It was further argued that the appellate court failed to consider the submission that even if a wrong provision (Order 21 Rule 58) was quoted, the claim was maintainable under Order 21 Rule 101 CPC, which mandates the Executing Court to determine all questions regarding right, title, and interest.
Sri C. Subodh, counsel for the respondents, opposed the review, contending that the appeal was decided on merits and that a review cannot be treated as an “appeal in disguise.”
Court’s Analysis and Observations
The Division Bench examined the scope of review jurisdiction, referring to Section 114 and Order 47 Rule 1 of the CPC. Relying on Supreme Court precedents, including Hari Vishnu Kamath v. Syed Ahmad Ishaque and Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, the Court reiterated that a review is maintainable for a “mistake or error apparent on the face of the record” or for “any other sufficient reason.”
The Court observed that in the previous appellate judgment, the petitioner’s specific grounds challenging the Executing Court’s order were explicitly recorded. These included the argument that:
“The appellant, who is claiming independent right of her legitimate share in the E.P. Schedule property can maintain the claim petition and mere quoting of wrong provision of law as Order XXI Rule 58 will not disentitle the appellant to maintain the claim petition though the decree is a mortgage decree.”
However, the Bench noted that while these submissions were recorded, they were not addressed or decided.
Justice Tilhari, writing for the Bench, observed:
“But when an issue was raised, argument was advanced and also recorded in the judgment but not addressed and not decided, we are of the view that if such an issue or argument has an impact on an issue involved in the matter… then non-consideration of such argument… would certainly be an error of law.”
The Court clarified that it was not entering into the merits of whether the arguments were correct, but rather that the failure to adjudicate them constituted an error. The Bench cited Rajender Singh v. Lt. Governor, noting that the power of review extends to correcting errors to prevent a miscarriage of justice when vital issues are ignored.
The Court held:
“The appellate court (the coordinate Bench), in our view, was required to consider the submissions advanced before it. We find that the material aspects of the matter as raised to challenge the order of the Executing Court remained unaddressed and unanswered in the appellate judgment.”
Conclusion and Decision
The High Court concluded that the non-consideration of relevant submissions, which were germane to the challenge against the Executing Court’s order, constituted an error apparent on the face of the record.
Allowing the petition, the Court ordered:
“In the result, the Review Petition I. A. No.1 of 2022 is allowed setting aside the Judgment and Decree dated 05.01.2022 passed in A.S.No.59 of 2020. The Appeal is restored to its original number for fresh decision on merits.”
Case Details:
- Case Title: Palla Chenchu Harikala v. Bysani Satish and others
- Case Number: Review I. A. No. 1 of 2022 in A. S. No. 59 of 2020
- Bench: Justice Ravi Nath Tilhari and Justice Maheswara Rao Kuncheam
