- (1.) THIS appeal by special leave calls in question an order passed by a single Judge (G.D. Sharma, J.) of the High Court of Jammu and Kashmir on 6.3.1997 in exercise of the review jurisdiction under Order 47 Rule 1 CPC. The learned Judge 'upset' the findings recorded on April 25, 1989 in Civil Revision No. 87 of 1987 by another single Judge (K.K. Gupta, J.) of that Court.
(2.) SHORN of details, brief facts necessary for disposal for this appeal are that on November 28, 1977 a suit, filed by the appellants, was decreed and an injunction was issued to the defendant -respondents to close down the passage carved out by opening a door from the wall and further the defendants were restrained from using that passage. On August 7, 1986 an application for execution of the decree was filed in the Executing Court on the ground that the injunctions were being violated. The judgment debtor filed objections to the Execution Application and raised a preliminary objection to the effect that the Execution Application was barred by time. The Executing Court vide order dated May 6, 1987 upheld the preliminary objection and held the Execution Application to be barred by time. The matter was taken up in revision to the High Court. On 25.4.1989, the Civil Revision Petition against the order of Executing Court was allowed. Gupta, J. allowing the civil revision petition held that the case was covered by Article 181 of the Jammu and Kashmir Limitation Act and the opinion of the Executing Court that it was covered by Article 182 of the J and K. Limitation Act was erroneous. It was held that the petition was not barred by time. The Execution Application was remanded to the Executing Court for decision on merits. A review petition came to be filed by the judgment debtors and on 6.3.1997 the review petition was allowed by Sharma, J. and the order dated 25.4.1989 was set at naught and that of the Executing Court dated 6.5.1987 restored.
(3.) MR . Ranjit Kumar, learned Counsel appearing for the appellant submitted that the impugned order is vitiated as it transgresses the powers of review available to the Court under Order 47 Rule 1 CPC. He submitted that the review petition had been treated as if it was an appeal. He also referred to the grounds of the review application and urged that on none of those grounds was the review of the order dated 25.4.1989 justified. Mr. M.L. Bhat, learned senior counsel appearing for the respondents, on the other hand submitted that the Review Court had only set right the mistake committed by Gupta, J. by correct interpretation of the decree and the application of the relevant article of the Limitation Act to the facts of the case and that exercise could not be faulted with. He asserted that Sharma, J. had rightly set aside the order of Gupta, J. dated 25.4.1989 and upheld the order of the Executing Court dated 6.5,1987.;