IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14454 of 2009(O)
1. P.J.BABY, PUTHIYAPARAMBIL,
... Petitioner
Vs
1. ROSAMMA,
... Respondent
2. MARY, W/O.JOSE,
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.SEBASTIAN DAVIS
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.14454 OF 2009
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Dated this the 18th day of September 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Call for the records leading to Ext.P1
to P5.
ii) Set aside Ext.P5 order dated
17/03/2009 in E.A No.263/2008 in E.P No.68/01 in
O.S No.367/94 of the Sub Court, Pala and direct the
court below to review and reconsider Ext.P3 order
by also granting the petitioner opportunity to
adduce evidence.
iii) Render such other orders as this
Hon’ble Court may deem fit and proper in the
circumstances of the case.
W.P.(C).No.14454 OF 2009 Page numbers
2. Petitioner is the decree holder in E.P
No.68 of 2001 in O.S No.367 of 1994 on the file of
the Sub Court, Pala. The decree executed is one
passed in a suit for specific performance. In the
execution proceedings on the application moved by
the decree holder, an advocate commissioner was
appointed to measure out and identify the decree
schedule property. A report and plan filed by the
commissioner previously was remitted on the
objections raised by the parties to the proceeding.
The report and plan prepared by the commissioner
subsequently was also objected to by the parties,
both by the decree holder and also the judgment
debtor. When the objections raised to the report
and plan were considered, the learned counsel
appearing for the decree holder made a concession
that in the property identified for conveyance
towards the decree, the decree holder has no
objection in providing a road having a width of
W.P.(C).No.14454 OF 2009 Page numbers
10 feet for access to the property comprising the
of a building of the judgment debtor situate
behind. Acting upon that concession, the court
passed an order remitting the report by the
commissioner to identify and measure out the road
as conceded. The decree holder thereafter filed a
petition supported by an affidavit contending that
no authority had been conferred on his counsel to
make the concession made before court. He applied
for review of the previous order passed by the
court. That application was opposed to by the
judgment debtor. The learned Sub Judge after
hearing both sides dismissed the review petition.
Challenging the propriety and correctness of that
order, a copy of which is produced as Ext.P5, the
writ petition has been filed invoking the
supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
W.P.(C).No.14454 OF 2009 Page numbers
2. I heard the counsel on both sides.
The learned counsel for the petitioner / decree
holder submitted that the learned Sub Judge went
wrong in acting upon the concession purported to
have been made by his counsel without getting such
concession recorded by the decree holder. So much
so, it is submitted, Ext.P5 order which is against
the mandate as to how a concession of any of the
parties to the lis has to be dealt with is liable
to be set aside. On the other hand, the learned
counsel for the respondent / judgment debtor
contended that the concession given by the counsel
was bonafide and there is no circumstance
whatsoever for its review on the subsequent
retraction made by the decree holder. Having
regard to the submissions made and taking note of
the facts and circumstances presented it has to be
stated that the court below has not appreciated the
challenges raised against the previous order sought
W.P.(C).No.14454 OF 2009 Page numbers
to be reviewed with reference to the provisions of
law applicable. Order 23 Rule 3 of the Code of
Civil Procedure mandates that when a compromise is
made by the concession of a party, it should be
recorded in writing duly signed by the parties.
The Apex Court having occasion to take note of the
mischief emanating from concessions made by the
counsel at the time of hearings, on which
decisions had been rendered by the courts has held
in “Gurpreef Singh v Chatur Bhuj Goel” (1988(1) SCC
270) that the procedural mandate covered by Order
23 Rule 3 has to be scrupulously followed and the
concession made at the time of hearing has to be
got recorded in writing. For that solitary reason
itself in the present case, the order passed by the
court below acting upon the concession made by the
counsel of the decree holder is liable to be set
aside. Setting aside Ext.P3 and P5 orders passed
by the court below, I direct the learned Sub Judge
W.P.(C).No.14454 OF 2009 Page numbers
to consider the merit of the objections raised to
the commission report afresh and pass appropriate
orders, and dispose of the execution proceedings as
expeditiously as possible.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY/
P.A TO JUDGE
vdv