IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 1078 of 2007(J)
1. M.K. VISWAMBARAN, S/O.KUTTAN KAKKI,
... Petitioner
2. M.K. SUCHEENDRAN, S/O.KUTTAN KAKKI,
3. M.K. RAJAPPAN, S/O.KUTTAN KAKKI,
4. M.K. VIJAYAN, S/O.KUTTAN KAKKI,
Vs
1. STATE OF KERALA,
... Respondent
2. DEVAKI AMMA, D/O. KARTHIYANI AMMA,
3. SANKARANARAYANAN, S/O.KARTHIYANI AMMA,
4. VENUGOPALAN, S/O.KARTHIYANI AMMA,
5. BALAKRISHNAN, S/O.KARTHIYANI AMMA,
6. RAVEENDRAN, S/O.KARTHIYANI AMMA,
7. SURENDRAN, S/O.KARTHIYANI AMMA,
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
ORDER
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
R.P.No.1078/07
2
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
R.P.No.1078/07
3
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
R.P.No.1078/07
4
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
R.P.No.1078/07
5
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
R.P.No.1078/07
6
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
192).
R.P.No.1078/07
7
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
868).
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.”
R.P.No.1078/07
8
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
Code.
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
R.P.No.1078/07
9
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
only-
” 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
R.P.No.1078/07
10
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
R.P.No.1078/07
11
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
R.P.No.1078/07
12
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
R.P.No.1078/07
13
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
R.P.No.1078/07
14
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
R.P.No.1078/07
15
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.
PIUS.C.KURIAKOSE
JUDGE
sv
