M.K. Viswambaran vs State Of Kerala on 8 May, 2009

Kerala High Court
M.K. Viswambaran vs State Of Kerala on 8 May, 2009




RP.No. 1078 of 2007(J)

                      ...  Petitioner


                       ...       Respondent







                For Petitioner  :SRI.K.RAMAKUMAR (SR.)

                For Respondent  :SRI.K.V.JAYACHANDRAN

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :08/05/2009

 O R D E R
                        PIUS.C.KURIAKOSE, J.
                          R.P.No.1078 OF 2007 IN
                       W.P.(C)No.18996 OF 2005 &
                  I.A.No.12919/2007 IN R.P.No.1078/2007
                    Dated this the 8th day of May, 2009


Petitioners are the petitioners in the writ petition and they seek

review of the judgment dated 30-07-2007 passed in the writ petition.

The main relief sought for in the writ petition was to quash Ext.P12

order of the execution court. Ext.P12 was passed on an application for

restoration of an execution petition in which the writ petitioner was the

judgment debtor and also for condonation of the delay caused in the

matter of depositing the value of improvements which had been

ordered to be paid by the decree holder. Under the judgment, I upheld

Ext.P12 incorporating a condition that a sum of Rs.1501/- shall be paid

by way of cost. The review petitioners seek review of the judgment on

the ground that the judgment suffers from an error of law apparent on

the face of the record. It is urged that the provisions of the Limitation

Act do not apply to applications for restoration of execution

proceedings filed under Order XXI CPC. It is pointed out that the


order of the execution court dismissing the execution petition

became operative on 12/08/2004 due to the failure of the decree

holder to make deposit and therefore application for restoration

should have been filed on 11/05/2004 which apparently was not

done. It is urged that this court went wrong in holding that the

restoration petition can be entertained as it actually related only to

the deposit. According to the review petitioners, the above view of

this court is contrary to statutory provisions and the order in so far as

the same is made in violation of statutory provisions and decisions

of the Supreme Court is bad per se.

2. I have heard the submissions of Sri.K.Ramkumar,

learned senior counsel for the review petitioners and also those of

Sri.M.K.Sucheendran, an Advocate, the second respondent who

appeared in person. I have also heard Sri.K.V.Jayachandran, learned

counsel for the respondents. Sri.K.Ramkumar, learned senior

counsel submitted that the review petitioners are the legal

representatives of defendants 2 and 3 in the suit. The suit was for

setting aside the sale deed executed by the fourth defendant

Karthiyani Amma in favour of the first defendant Parukutty Amma


and for recovery of possession of the properties from defendants 2

and 3 with damages. The suit was decreed and recovery of

possession was ordered against defendants 2 and 3. Sri.Ramkumar

submitted that the first execution petition was filed on 05/04/1966

which was dismissed due to the absence of the decree holders on

30-07-1996. On 25-11-1969 in A.S.No.170/1967 the trial court’s

decree was affirmed by the Sub Court. E.P. was filed on 05/04/1974

which was dismissed on 21/03/1976. Thereafter fresh E.P. No.

367/1981 was filed on 20-11-1981. The legal representatives of the

defendants who died in between were made parties in the execution

petition. On 12/03/1984, the Commissioner appointed by the court

submitted a report assessing value of improvements. On

27-09-1993, the execution petition was dismissed for failure to

deposit the value of improvements before the expiry date. Against

that C.R.P.No.219/1994 was filed. C.R.P.No.219/1994 was

disposed of holding that execution petition was not time barred.

Sri.K.Ramkumar, learned senior counsel submitted that it was also

held that the judgment debtors are entitled for revaluated cost.

C.R.P. was disposed of on 17/09/1996. Sri.K.Ramkumar submitted


that on 09/09/2003 execution petition was re-opened pursuant to the

High Court’s order in the C.R.P. for hearing. E.P. was allowed on

12/08/2004 directing the decree holders to deposit Rs.1501.96

within seven days. In the meanwhile the first JD Parukutty Amma

and the fourth JD Karthiyani Amma had passed away.

Sri.K.Ramkumar submitted that till date, the legal representatives of

those JDs have not been brought on record. The order of the

execution court on 12/08/2004 allowing the E.P. and directing

recovery was on condition that the decree holders deposit the

balance amount of rs. 1501.96 and on the assumption that the

amount will be deposited, delivery was posted on 18/09/2004. On

18/09/2004, when the E.P. was posted, the same was dismissed since

no amount had been deposited. The learned senior counsel,

submitted that on 22/09/2004, the decree holder filed an application

on the ground that he had fallen ill seeking restoration of the

execution petition and for receiving the amounts. The above

application was accompanied by an application for condonation of

delay in depositing the amount. That was E.A.No.1027/2004. The

applications were opposed on the ground that legal representatives


of the deceased judgment debtors were not impleaded and therefore

the E.P. itself was defective. Sri.Ramkumar submitted that it was

also contended by the judgment debtors that in terms of Rule 105 of

Order XXI of CPC, an application for restoration is not

maintainable but only a revision to the High Court will lie.

According to Sri.K.Ramkumar, without even referring to the

objections, the E.A. was allowed and it was against the order

allowing the E.A. that the writ petition was filed.

3. Sri.Ramkumar, learned senior counsel argued that

admittedly the order dated 18/09/2004 in E.P.No. 367/1981 was not

an order by default, but it was an order dismissing the petition for

not depositing the amount. No application for restoration of the

execution petition could lie under Rule 105(2). It was under Rule

106(3) Order XXI that E.A. No. 1027/04 was filed. The said Rule

applies not to an order for failure of deposit, but only to set aside an

order made ex parte. Therefore the application was not

maintainable. The only option according to the learned senior

counsel, for the decree holder was to file a fresh execution petition

or seek revision of the order dated 18-09-2004 under Section 47 of


the Code after 1976 amendment. According to Sri.K.Ramkumar

there was no question of condoning the delay as the Execution

Petition had already been dismissed and without invalidating that

dismissal order there cannot be an application for restoration. The

application E.A. 1027/2004 which was admittedly for restoration

therefore was not maintainable at all. Sri.K.Ramkumar submitted

that this court did not notice the nature of the application filed as

E.A. NO. 1027/2004 and interfered with the order of the court below

only to the extent of ordering costs. According to the learned senior

counsel E.A.1027/04 was itself not maintainable in law since the

order dated 18-09-2004 was not challenged either in revision or by

way of writ petition. Since the execution court restored the petition

without jurisdiction this court should have intervened in exercise of

powers under Article 227 of the Constitution. Since that has not

been done, the judgment needs review. Sri.K.Ramkumar, learned

senior counsel would place reliance on the judgment of the Supreme

Court in Damodaran Pillai v. South Indian Bank ( 2005(4) KLT



4. Sri.M.K.Sucheendran supported all the submissions of

Sri.K.Ramkumar. He took me to the facts in detail and relied on my

own judgment in Cleetus v. South Indian Bank ( 2007(3) KLT


5. Sri.K.V. Jayachandran, learned counsel for the decree

holders was able to meet the submissions of Sri.K.Ramkumar,

learned senior counsel, and of Sri.M.K.Sucheendran. According to

him, no ground is made out for reviewing my judgment dated

30-07-2007 within the contours of Rule 1 of Order 47 or Section

114 CPC.

6. In the instant case, it is seen that Ext.P11 restoration

application is filed on 22/09/2004. This was why I found in the

judgment as follows :

” As for restoration of the execution

petition it is to be noticed immediately that there

was no delay in filing the application since the

same is filed within 30 days of the dismissal of

the execution petition. As for the direction

regarding the deposit of value of improvements,

the court had not fixed any particular date for

deposit of improvements.”


7. I had also observed that on 08/09/2004 the decree

holders orally applied for time for making deposit and the execution

court adjourned the E.P. to 18/09/2004 and dismissed the E.P. on

that day for want of deposit. I also found that since in the earlier

order, the court had not fixed time for depositing the value of

improvements, the power exercised by the court on 08/09/2004 was

only the power for enlargement of time under Section 148 of the


8. During the course of the submissions,

Sri.M.K.Sucheendran, brought the B diary in the Execution

proceedings to my notice. The same is produced along with the

counter affidavit of I.A.No. 12919/2007. I.A.No. 12919/2007 is a

correction petition which was filed by the decree holder respondents

for rectifying a patent mistake which had crept into the judgment

while passing direction regarding payment of costs. Relying on

Ext.P14 it was argued that as per the proceedings recorded in

Ext.P14 on 12/08/2004, the respondents are to deposit the balance

amount of Rs. 1501.96 within seven days and if the amount is not

deposited in seven days, the E.P. will stand dismissed. It is pertinent


to note that Ext.P14 was not produced by the review petitioner along

with the writ petition or even in the review petition. According to

me, it will not be proper to rely on Ext.P14 while considering the

review petition since such a course would cause prejudice to the

respondents. The assertion of the decree holder is that Ext.P10 is the

order which was actually pronounced by the execution court on

12/08/2004 in the open court. The above assertion cannot be

legitimately disputed by the review petitioners since they only

produced Ext.P10 as the order which was passed by the court on

12/08/2004. Ext.P10 is an elaborate order which runs to 13 type

written pages and its operative portion is to the following effect


” In the result, the petition is allowed as prayed for with costs

on condition that the decree holder remits balance amount of Rs.

1501.96. Deliver on 08-09-2004.”

9. Ext.P10 does not contain any of the stipulations as found

in Ext.P14 B diary and this was why it was observed in my judgment

that the court had not stipulated any particular date for depositing

the balance amount. The argument of Sri.K.V. Jayachandran that


Ext.P10 being an order which was passed by the court in the open

court shall prevail over the proceedings paper and A and B diaries

has considerable force. A and B diaries as well as proceedings paper

are prepared and maintained as per Rules 382, 383, 384 of the Civil

Rules of Practice which have been framed by the High Court for

regulating the procedure in the Subordinate Courts. Rule 382 deals

with A diary to be maintained by the court in the proceedings setting

out only the judicial work done in each case. A diary shall be signed

by the Judge himself. Rule 383 provides that a B diary in loose

sheets shall be maintained to be kept with the records of the case

showing the dates and nature of the proceedings in the several stages

of a suit, appeal or execution petition. The B diary shall be

maintained and signed by the chief ministerial officer. Rule 384

deals with the proceedings paper to be maintained furnishing the

judicial steps taken in the proceedings. It is provided that the

proceedings paper shall be written and signed or initialed by the

Judge himself in open court. A reading of the above Rules will

show that the Judge after passing orders like Ext.P10 is expected to

minute it in the proceedings paper and it will in turn reflect in A and


B diaries. The Judge while minuting judicial orders like Ext.P10, in

the proceedings paper or in A or B diaries cannot add to or vary the

order pronounced by him. Any variation or addition made in the

proceedings paper or in A diary or B diary for that matter while

minuting the order pronounced will be illegal and grossly irregular.

Ext.P14 will certainly have to be ignored in the facts of this case

where Ext.P10 is the order pronounced by the Judge and is produced

by the review petitioners themselves along with the writ petition as

the order so pronounced. It will also be noticed now that it is not

urged as a ground in the writ petition that this court went wrong in

holding that no fixed time had been fixed by the execution court for

depositing the value of improvements and that the court had the

power to enlarge the time for making deposit under Section 148 of

the Code of Civil Procedure. Significantly, the adjournment of the

case of the E.P. from 08/09/2004 to 18/09/2004 which was

obviously for the purpose of deposit of value of improvements is not

impugned in the writ petition at all.

10. The contention of the review petitioner that by Ext.P10

order, the E.P. stands dismissed in the event of failure to deposit the


value of improvements is unsustainable. It cannot be argued that

Ext.P10 order will operate with effect from 12/08/1994. The

execution court dismissed the E.P. only on 18/09/2004 noticing the

default on the side of the decree holder in depositing the value of

improvements within the extended period – before 18/09/2004 and

therefore Ext.P11 application for restoration filed within four days

of 18-09-2004 was on time.

11. Sri.K.Ramkumar, learned senior counsel raised a new

contention that Ext.P11 is filed under Rule 106 of Order XXI CPC

and that Ext.P11 is not maintainable under that provision. But it

should be noticed that the said contention is raised against the relief

which is claimed in the review petition. The ground raised in the

review petition is that the restoration petition Ext.P11 is filed

beyond the period fixed under Rule 106 Order XXI CPC. It is seen

from Ext.P11 that the same is filed invoking Rule 106(3) of Order

XXI CPC, Section 151 CPC and also Section 5 of the Limitation

Act. It is trite, that quoting a wrong provision of law will not

operate as bar in exercising jurisdiction and granting relief. It was

unnecessary for the respondents to have invoked Section 5 of the


Limitation Act. The order dated 18/09/2004 is certainly an order

dismissing the execution petition for default under Rule 105(2).

Even though Sub Rule 2 of Rule 105 only states one of the situation

or reason for dismissing for default for non appearance, the said

Rule necessarily has to cover all situations leading to dismissal for

default. At any rate Section 151 of the Code which saves the

inherent power of the court had also been invoked and according to

me, Ext.P11 was certainly maintainable. My conclusion therefore is

that no ground is made out by the review petitioners for reviewing

the judgment dated 30-07-2007.

12. It is now necessary to consider I.A.No. 12919/2007.

While upholding Ext.P12 order passed on Ext.P11 application filed

by the respondents I imposed a condition that the respondents have

to pay a sum of Rs. 1501/- to the petitioners within two weeks and

on default, Ext.P11 will stand dismissed. The respondents are

certainly right in submitting that some confusion has been created

regarding the identity of payer and payee of the said amount by the

words used in the judgment. The respondents filed I.A.No.

10680/2007 seeking permission to deposit the amount before this


court. It was also submitted that the review petitioners sent a money

order to the respondents and filed a petition before the execution

court seeking dismissal of the petition. I am of the view that the I.A.

should be allowed so that the confusion is removed. Accordingly,

the I.A. is allowed issuing the following directions :

The last two sentences of the judgment dated 30-07-2007 are

deleted and will stand substituted by the following two sentences:

Even as I uphold Ext.P12, there will be a direction that the

decision taken under Ext.P12 will be conditional on the decree

holder respondents paying a sum of Rs. 1501/- to the writ petitioners

by way of costs which can be paid either to the them directly or

through their counsel in this court within two weeks from today. If

payment as directed above is not made within the stipulated time,

Ext.P11 will stand dismissed and Ext.P12 will stand set aside and

the writ petition will stand allowed.

13. The Review Petition stands dismissed and I.A.No.

12919/2007 is allowed as above. However, the execution court is

directed to explore the possibilities of a settlement of the disputes

between the decree holders and the judgment debtors either by


referring the disputes to mediation or at that court’s option by

ordering attendance of the concerned parties in the court and by

having discussions with them and their respective counsel over

settlement, if any possible.

Considering the above directions, the execution court is

directed not to enforce delivery of the decree schedule properties for

a period of three more months after the first posting of the E.P. on

receiving a copy of this judgment.



Leave a Comment

Your email address will not be published. Required fields are marked *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information