C.I.Koshy vs Abraham Thomas on 4 November, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 24603 of 2010(O)


1. C.I.KOSHY, S/O.ABRAHAM,
                      ...  Petitioner

                        Vs



1. ABRAHAM THOMAS, CHEMPALETHU ANEESH
                       ...       Respondent

                For Petitioner  :SRI.V.PHILIP MATHEW

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :04/11/2010

 O R D E R
                             THOMAS P. JOSEPH, J.
                            --------------------------------------
                             W.P.(C) No.24603 of 2010
                            --------------------------------------
                     Dated this the 4th day of November, 2010.

                                      JUDGMENT

Respondent though served, has not appeared.

2. Petitioner is the plaintiff in O.S.No.38 of 2000 of the court of

learned Munsiff, Pathanamthitta. He sued respondent for fixation of boundary

of the suit property and based on Ext.P3, report and plan learned Munsiff has

passed an exparte judgment and decree (Exts.P4 and P4(a)). As per that,

boundary of the property claimed by petitioner was fixed along ATHCD line.

Realising that there is apparent mistake in the boundary fixed by learned Munsiff,

petitioner filed I.A.No.1009 of 2008 (Ext.P5) to remit Exts.P3, report and plan to

the Advocate Commissioner, get the mistake in that report and plan corrected

and to correct the judgment and decree fixing boundary in the proper manner.

According to the petitioner his entitlement is over 55= cents as per Ext.P1,

settlement deed but the court below has erroneously fixed total extent of land

belonging to the petitioner as 58 cents. The purport of Ext.P5, application was to

exclude the 2= cents covered by shoprooms which also has been shown as part

of property as per Ext.P1, settlement deed. Learned Munsiff has passed

Ext.P6, order stating that petitioner has not shown any provision of law to the

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notice of learned Munsiff to allow the prayer and that the court has no authority

to correct the judgment ‘as prayed for’. That order is under challenge in this

proceeding.

3. Learned counsel contends that the mistake in the judgment and

decree fixing boundary arises from the mistakes in Ext.P3, report and plan.

Learned counsel has invited my attention to paragraph No.14 of Ext.P5,

application where it is stated that on account of inadvertence of the counsel

petitioner was not able to give necessary instruction on time and that the report

and plan submitted by the Advocate Commissioner (Ext.P3) are not correct. The

prayer in Ext.P5, application is to remit the report and plan to the Advocate

Commissioner, get a proper report and plan and fix boundary based on such

report and plan. It is also prayed that property belonging to the petitioner may

be identified as per Ext.P1, settlement deed.

4. I am not persuaded to think that these matters will come within the

purview of Section 152 or even Section 153 of the Code of Civil Procedure (for

short, “the Code”). It is not as if there is any error in the judgment or decree as

contemplated in Section 152 of the Code but, the request virtually is to re-open

the case, remit Ext.P3, report and plan, get a proper report and plan in

accordance with Ext.P1, settlement deed and the plaint schedule descriptions

and fix the boundary. That cannot be done under Section 152 or 153 of the

Code. Hence learned Munsiff is justified in observing that the judgment (and

decree) cannot be corrected ‘as prayed for’. Remedy of petitioner is either to

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seek a review of judgment and decree if that is permissible on the facts of the

case and as the law provides or, challenge the exparte judgment and decree in

appeal if the boundary fixed as per that judgment and decree is not in

accordance with Ext.P1, settlement deed and the plaint schedule, get the case

re-opened, get Exts.P4 and P4(a) set aside, get Ext.P3, report and plan remitted

for appropriate corrections if any as circumstances warranted and to pass fresh

judgment and decree. Hence without prejudice to that right of petitioner, this

petition is closed. In considering condonation/exclusion of delay in filing the

appeal or seeking review as the case may be, it will be open to the petitioner to

request the court concerned to exclude/condone the period during which this

proceeding was pending in this Court.

THOMAS P.JOSEPH,
Judge.

cks