{"id":232489,"date":"2009-05-08T00:00:00","date_gmt":"2009-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-k-viswambaran-vs-state-of-kerala-on-8-may-2009"},"modified":"2019-04-02T04:58:58","modified_gmt":"2019-04-01T23:28:58","slug":"m-k-viswambaran-vs-state-of-kerala-on-8-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-k-viswambaran-vs-state-of-kerala-on-8-may-2009","title":{"rendered":"M.K. Viswambaran vs State Of Kerala on 8 May, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.K. Viswambaran vs State Of Kerala on 8 May, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRP.No. 1078 of 2007(J)\n\n\n1. M.K. VISWAMBARAN, S\/O.KUTTAN KAKKI,\n                      ...  Petitioner\n2. M.K. SUCHEENDRAN, S\/O.KUTTAN KAKKI,\n3. M.K. RAJAPPAN, S\/O.KUTTAN KAKKI,\n4. M.K. VIJAYAN, S\/O.KUTTAN KAKKI,\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n2. DEVAKI AMMA, D\/O. KARTHIYANI AMMA,\n\n3. SANKARANARAYANAN, S\/O.KARTHIYANI AMMA,\n\n4. VENUGOPALAN, S\/O.KARTHIYANI AMMA,\n\n5. BALAKRISHNAN, S\/O.KARTHIYANI AMMA,\n\n6. RAVEENDRAN, S\/O.KARTHIYANI AMMA,\n\n7. SURENDRAN, S\/O.KARTHIYANI AMMA,\n\n                For Petitioner  :SRI.K.RAMAKUMAR (SR.)\n\n                For Respondent  :SRI.K.V.JAYACHANDRAN\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :08\/05\/2009\n\n O R D E R\n                        PIUS.C.KURIAKOSE, J.\n                      ------------------------------------\n                          R.P.No.1078 OF 2007 IN\n                       W.P.(C)No.18996 OF 2005 &\n                  I.A.No.12919\/2007 IN R.P.No.1078\/2007\n                      ----------------------------------------\n                    Dated this the 8th day of May, 2009\n\n                                    ORDER\n<\/pre>\n
      Petitioners are the petitioners in the writ petition and they seek<\/p>\n
review of the judgment dated 30-07-2007 passed in the writ petition.<\/p>\n
The main relief sought for in the writ petition was to quash Ext.P12<\/p>\n
order of the execution court. Ext.P12 was passed on an application for<\/p>\n
restoration of an execution petition in which the writ petitioner was the<\/p>\n
judgment debtor and also for condonation of the delay caused in the<\/p>\n
matter of depositing the value of improvements which had been<\/p>\n
ordered to be paid by the decree holder. Under the judgment, I upheld<\/p>\n
Ext.P12 incorporating a condition that a sum of Rs.1501\/- shall be paid<\/p>\n
by way of cost. The review petitioners seek review of the judgment on<\/p>\n
the ground that the judgment suffers from an error of law apparent on<\/p>\n
the face of the record. It is urged that the provisions of the Limitation<\/p>\n
Act do not apply to applications for restoration of execution<\/p>\n
proceedings filed under Order XXI CPC. It is pointed out that the<\/p>\n
R.P.No.1078\/07
\n                                      2<\/span><\/p>\n
order of the execution court dismissing the execution petition<\/p>\n
became operative on 12\/08\/2004 due to the failure of the decree<\/p>\n
holder to make deposit and therefore application for restoration<\/p>\n
should have been filed on 11\/05\/2004 which apparently was not<\/p>\n
done. It is urged that this court went wrong in holding that the<\/p>\n
restoration petition can be entertained as it actually related only to<\/p>\n
the deposit. According to the review petitioners, the above view of<\/p>\n
this court is contrary to statutory provisions and the order in so far as<\/p>\n
the same is made in violation of statutory provisions and decisions<\/p>\n
of the Supreme Court is bad per se.\n<\/p>\n
      2.     I have heard the submissions of Sri.K.Ramkumar,<\/p>\n
learned senior counsel for the review petitioners and also those of<\/p>\n
Sri.M.K.Sucheendran, an Advocate, the second respondent who<\/p>\n
appeared in person. I have also heard Sri.K.V.Jayachandran, learned<\/p>\n
counsel for the respondents. Sri.K.Ramkumar, learned senior<\/p>\n
counsel submitted that the review petitioners are the legal<\/p>\n
representatives of defendants 2 and 3 in the suit. The suit was for<\/p>\n
setting aside the sale deed executed by the fourth defendant<\/p>\n
Karthiyani Amma in favour of the first defendant Parukutty Amma<\/p>\n
R.P.No.1078\/07
\n                                   3<\/span><\/p>\n
and for recovery of possession of the properties from defendants 2<\/p>\n
and 3 with damages.       The suit was decreed and recovery of<\/p>\n
possession was ordered against defendants 2 and 3. Sri.Ramkumar<\/p>\n
submitted that the first execution petition was filed on 05\/04\/1966<\/p>\n
which was dismissed due to the absence of the decree holders on<\/p>\n
30-07-1996. On 25-11-1969 in A.S.No.170\/1967 the trial court’s<\/p>\n
decree was affirmed by the Sub Court. E.P. was filed on 05\/04\/1974<\/p>\n
which was dismissed on 21\/03\/1976.        Thereafter fresh E.P. No.<\/p>\n
367\/1981 was filed on 20-11-1981. The legal representatives of the<\/p>\n
defendants who died in between were made parties in the execution<\/p>\n
petition. On 12\/03\/1984, the Commissioner appointed by the court<\/p>\n
submitted a report assessing value of improvements.             On<\/p>\n
27-09-1993, the execution petition was dismissed for failure to<\/p>\n
deposit the value of improvements before the expiry date. Against<\/p>\n
that C.R.P.No.219\/1994 was filed.          C.R.P.No.219\/1994 was<\/p>\n
disposed of holding that execution petition was not time barred.<\/p>\n
Sri.K.Ramkumar, learned senior counsel submitted that it was also<\/p>\n
held that the judgment debtors are entitled for revaluated cost.<\/p>\n
C.R.P. was disposed of on 17\/09\/1996. Sri.K.Ramkumar submitted<\/p>\n
R.P.No.1078\/07
\n                                   4<\/span><\/p>\n
that on 09\/09\/2003 execution petition was re-opened pursuant to the<\/p>\n
High Court’s order in the C.R.P. for hearing. E.P. was allowed on<\/p>\n
12\/08\/2004 directing the decree holders to deposit Rs.1501.96<\/p>\n
within seven days. In the meanwhile the first JD Parukutty Amma<\/p>\n
and the fourth JD Karthiyani Amma had passed away.<\/p>\n
Sri.K.Ramkumar submitted that till date, the legal representatives of<\/p>\n
those JDs have not been brought on record.        The order of the<\/p>\n
execution court on 12\/08\/2004 allowing the E.P. and directing<\/p>\n
recovery was on condition that the decree holders deposit the<\/p>\n
balance amount of rs. 1501.96 and on the assumption that the<\/p>\n
amount will be deposited, delivery was posted on 18\/09\/2004. On<\/p>\n
18\/09\/2004, when the E.P. was posted, the same was dismissed since<\/p>\n
no amount had been deposited.         The learned senior counsel,<\/p>\n
submitted that on 22\/09\/2004, the decree holder filed an application<\/p>\n
on the ground that he had fallen ill seeking restoration of the<\/p>\n
execution petition and for receiving the amounts.        The above<\/p>\n
application was accompanied by an application for condonation of<\/p>\n
delay in depositing the amount. That was E.A.No.1027\/2004. The<\/p>\n
applications were opposed on the ground that legal representatives<\/p>\n
R.P.No.1078\/07
\n                                     5<\/span><\/p>\n
of the deceased judgment debtors were not impleaded and therefore<\/p>\n
the E.P. itself was defective. Sri.Ramkumar submitted that it was<\/p>\n
also contended by the judgment debtors that in terms of Rule 105 of<\/p>\n
Order XXI of        CPC, an application for restoration is not<\/p>\n
maintainable but only a revision to the High Court will lie.<\/p>\n
According to Sri.K.Ramkumar, without even referring to the<\/p>\n
objections, the E.A. was allowed and it was against the order<\/p>\n
allowing the E.A. that the writ petition was filed.<\/p>\n
       3.   Sri.Ramkumar, learned senior counsel argued that<\/p>\n
admittedly the order dated 18\/09\/2004 in E.P.No. 367\/1981 was not<\/p>\n
an order by default, but it was an order dismissing the petition for<\/p>\n
not depositing the amount. No application for restoration of the<\/p>\n
execution petition could lie under Rule 105(2). It was under Rule<\/p>\n
106(3) Order XXI that E.A. No. 1027\/04 was filed.        The said Rule<\/p>\n
applies not to an order for failure of deposit, but only to set aside an<\/p>\n
order made ex parte.          Therefore the application was not<\/p>\n
maintainable. The only option according to the learned senior<\/p>\n
counsel, for the decree holder was to file a fresh execution petition<\/p>\n
or seek revision of the order dated 18-09-2004 under Section 47 of<\/p>\n
R.P.No.1078\/07
\n                                    6<\/span><\/p>\n
the Code after 1976 amendment. According to Sri.K.Ramkumar<\/p>\n
there was no question of condoning the delay as the Execution<\/p>\n
Petition had already been dismissed and without invalidating that<\/p>\n
dismissal order there cannot be an application for restoration. The<\/p>\n
application E.A. 1027\/2004 which was admittedly for restoration<\/p>\n
therefore was not maintainable at all. Sri.K.Ramkumar submitted<\/p>\n
that this court did not notice the nature of the application filed as<\/p>\n
E.A. NO. 1027\/2004 and interfered with the order of the court below<\/p>\n
only to the extent of ordering costs. According to the learned senior<\/p>\n
counsel E.A.1027\/04 was itself not maintainable in law since the<\/p>\n
order dated 18-09-2004 was not challenged either in revision or by<\/p>\n
way of writ petition. Since the execution court restored the petition<\/p>\n
without jurisdiction this court should have intervened in exercise of<\/p>\n
powers under Article 227 of the Constitution. Since that has not<\/p>\n
been done, the judgment needs review. Sri.K.Ramkumar, learned<\/p>\n
senior counsel would place reliance on the judgment of the Supreme<\/p>\n
Court in Damodaran Pillai v. South Indian Bank<\/a> ( 2005(4) KLT<\/p>\n
192).\n<\/p>\n
R.P.No.1078\/07
\n                                      7<\/span><\/p>\n
      4.    Sri.M.K.Sucheendran supported all the submissions of<\/p>\n
Sri.K.Ramkumar. He took me to the facts in detail and relied on my<\/p>\n
own judgment in Cleetus v. South Indian Bank<\/a> ( 2007(3) KLT<\/p>\n
868).\n<\/p>\n
      5.    Sri.K.V. Jayachandran, learned counsel for the decree<\/p>\n
holders was able to meet the submissions of Sri.K.Ramkumar,<\/p>\n
learned senior counsel, and of Sri.M.K.Sucheendran. According to<\/p>\n
him, no ground is made out for reviewing my judgment dated<\/p>\n
30-07-2007 within the contours of Rule 1 of Order 47 or Section<\/p>\n
114 CPC.\n<\/p>\n
      6.    In the instant case, it is seen that Ext.P11 restoration<\/p>\n
application is filed on 22\/09\/2004.      This was why I found in the<\/p>\n
judgment as follows :\n<\/p>\n
                   ” As for restoration of the execution<\/p>\n
             petition it is to be noticed immediately that there<\/p>\n
             was no delay in filing the application since the<\/p>\n
             same is filed within 30 days of the dismissal of<\/p>\n
             the execution petition. As for the direction<\/p>\n
             regarding the deposit of value of improvements,<\/p>\n
             the court had not fixed any particular date for<\/p>\n
             deposit of improvements.”\n<\/p><\/blockquote>\n
R.P.No.1078\/07
\n                                    8<\/span><\/p>\n
      7.    I had also observed that on 08\/09\/2004 the decree<\/p>\n
holders orally applied for time for making deposit and the execution<\/p>\n
court adjourned the E.P. to 18\/09\/2004 and dismissed the E.P. on<\/p>\n
that day for want of deposit. I also found that since in the earlier<\/p>\n
order, the court had not fixed time for depositing the value of<\/p>\n
improvements, the power exercised by the court on 08\/09\/2004 was<\/p>\n
only the power for enlargement of time under Section 148 of the<\/p>\n
Code.\n<\/p>\n
      8.     During     the    course      of   the     submissions,<\/p>\n
Sri.M.K.Sucheendran, brought the B diary in the Execution<\/p>\n
proceedings to my notice. The same is produced along with the<\/p>\n
counter affidavit of I.A.No. 12919\/2007. I.A.No. 12919\/2007 is a<\/p>\n
correction petition which was filed by the decree holder respondents<\/p>\n
for rectifying a patent mistake which had crept into the judgment<\/p>\n
while passing direction regarding payment of costs. Relying on<\/p>\n
Ext.P14 it was argued that as per the proceedings recorded in<\/p>\n
Ext.P14 on 12\/08\/2004, the respondents are to deposit the balance<\/p>\n
amount of Rs. 1501.96 within seven days and if the amount is not<\/p>\n
deposited in seven days, the E.P. will stand dismissed. It is pertinent<\/p>\n
R.P.No.1078\/07
\n                                      9<\/span><\/p>\n
to note that Ext.P14 was not produced by the review petitioner along<\/p>\n
with the writ petition or even in the review petition. According to<\/p>\n
me, it will not be proper to rely on Ext.P14 while considering the<\/p>\n
review petition since such a course would cause prejudice to the<\/p>\n
respondents. The assertion of the decree holder is that Ext.P10 is the<\/p>\n
order which was actually pronounced by the execution court on<\/p>\n
12\/08\/2004 in the open court.         The above assertion cannot be<\/p>\n
legitimately disputed by the review petitioners since they only<\/p>\n
produced Ext.P10 as the order which was passed by the court on<\/p>\n
12\/08\/2004.    Ext.P10 is an elaborate order which runs to 13 type<\/p>\n
written pages and its operative portion is to the following effect<\/p>\n
only-\n<\/p>\n
      ” In the result, the petition is allowed as prayed for with costs<\/p>\n
on condition that the decree holder remits balance amount of Rs.<\/p>\n
1501.96. Deliver on 08-09-2004.”\n<\/p>\n
      9.    Ext.P10 does not contain any of the stipulations as found<\/p>\n
in Ext.P14 B diary and this was why it was observed in my judgment<\/p>\n
that the court had not stipulated any particular date for depositing<\/p>\n
the balance amount. The argument of Sri.K.V. Jayachandran that<\/p>\n
R.P.No.1078\/07
\n                                   10<\/span><\/p>\n
Ext.P10 being an order which was passed by the court in the open<\/p>\n
court shall prevail over the proceedings paper and A and B diaries<\/p>\n
has considerable force. A and B diaries as well as proceedings paper<\/p>\n
are prepared and maintained as per Rules 382, 383, 384 of the Civil<\/p>\n
Rules of Practice which have been framed by the High Court for<\/p>\n
regulating the procedure in the Subordinate Courts. Rule 382 deals<\/p>\n
with A diary to be maintained by the court in the proceedings setting<\/p>\n
out only the judicial work done in each case. A diary shall be signed<\/p>\n
by the Judge himself. Rule 383 provides that a B diary in loose<\/p>\n
sheets shall be maintained to be kept with the records of the case<\/p>\n
showing the dates and nature of the proceedings in the several stages<\/p>\n
of a suit, appeal or execution petition.      The B diary shall be<\/p>\n
maintained and signed by the chief ministerial officer. Rule 384<\/p>\n
deals with the proceedings paper to be maintained furnishing the<\/p>\n
judicial steps taken in the proceedings.     It is provided that the<\/p>\n
proceedings paper shall be written and signed or initialed by the<\/p>\n
Judge himself in open court.     A reading of the above Rules will<\/p>\n
show that the Judge after passing orders like Ext.P10 is expected to<\/p>\n
minute it in the proceedings paper and it will in turn reflect in A and<\/p>\n
R.P.No.1078\/07
\n                                    11<\/span><\/p>\n
B diaries. The Judge while minuting judicial orders like Ext.P10, in<\/p>\n
the proceedings paper or in A or B diaries cannot add to or vary the<\/p>\n
order pronounced by him. Any variation or addition made in the<\/p>\n
proceedings paper or in A diary or B diary for that matter while<\/p>\n
minuting the order pronounced will be illegal and grossly irregular.<\/p>\n
Ext.P14 will certainly have to be ignored in the facts of this case<\/p>\n
where Ext.P10 is the order pronounced by the Judge and is produced<\/p>\n
by the review petitioners themselves along with the writ petition as<\/p>\n
the order so pronounced. It will also be noticed now that it is not<\/p>\n
urged as a ground in the writ petition that this court went wrong in<\/p>\n
holding that no fixed time had been fixed by the execution court for<\/p>\n
depositing the value of improvements and that the court had the<\/p>\n
power to enlarge the time for making deposit under Section 148 of<\/p>\n
the Code of Civil Procedure. Significantly, the adjournment of the<\/p>\n
case of the E.P. from 08\/09\/2004 to 18\/09\/2004 which was<\/p>\n
obviously for the purpose of deposit of value of improvements is not<\/p>\n
impugned in the writ petition at all.\n<\/p>\n
      10.   The contention of the review petitioner that by Ext.P10<\/p>\n
order, the E.P. stands dismissed in the event of failure to deposit the<\/p>\n
R.P.No.1078\/07
\n                                   12<\/span><\/p>\n
value of improvements is unsustainable. It cannot be argued that<\/p>\n
Ext.P10 order will operate with effect from 12\/08\/1994.           The<\/p>\n
execution court dismissed the E.P. only on 18\/09\/2004 noticing the<\/p>\n
default on the side of the decree holder in depositing the value of<\/p>\n
improvements within the extended period – before 18\/09\/2004 and<\/p>\n
therefore Ext.P11 application for restoration filed within four days<\/p>\n
of 18-09-2004 was on time.\n<\/p>\n
      11.   Sri.K.Ramkumar, learned senior counsel raised a new<\/p>\n
contention that Ext.P11 is filed under Rule 106 of Order XXI CPC<\/p>\n
and that Ext.P11 is not maintainable under that provision. But it<\/p>\n
should be noticed that the said contention is raised against the relief<\/p>\n
which is claimed in the review petition. The ground raised in the<\/p>\n
review petition is that the restoration petition Ext.P11 is filed<\/p>\n
beyond the period fixed under Rule 106 Order XXI CPC. It is seen<\/p>\n
from Ext.P11 that the same is filed invoking Rule 106(3) of Order<\/p>\n
XXI CPC, Section 151 CPC and also Section 5 of the Limitation<\/p>\n
Act. It is trite, that quoting a wrong provision of law will not<\/p>\n
operate as bar in exercising jurisdiction and granting relief. It was<\/p>\n
unnecessary for the respondents to have invoked Section 5 of the<\/p>\n
R.P.No.1078\/07
\n                                   13<\/span><\/p>\n
Limitation Act. The order dated 18\/09\/2004 is certainly an order<\/p>\n
dismissing the execution petition for default under Rule 105(2).<\/p>\n
Even though Sub Rule 2 of Rule 105 only states one of the situation<\/p>\n
or reason for dismissing for default for non appearance, the said<\/p>\n
Rule necessarily has to cover all situations leading to dismissal for<\/p>\n
default.  At any rate Section 151 of the Code which saves the<\/p>\n
inherent power of the court had also been invoked and according to<\/p>\n
me, Ext.P11 was certainly maintainable. My conclusion therefore is<\/p>\n
that no ground is made out by the review petitioners for reviewing<\/p>\n
the judgment dated 30-07-2007.\n<\/p>\n
      12.   It is now necessary to consider I.A.No. 12919\/2007.<\/p>\n
While upholding Ext.P12 order passed on Ext.P11 application filed<\/p>\n
by the respondents I imposed a condition that the respondents have<\/p>\n
to pay a sum of Rs. 1501\/- to the petitioners within two weeks and<\/p>\n
on default, Ext.P11 will stand dismissed.      The respondents are<\/p>\n
certainly right in submitting that some confusion has been created<\/p>\n
regarding the identity of payer and payee of the said amount by the<\/p>\n
words used in the judgment. The respondents filed I.A.No.<\/p>\n
10680\/2007 seeking permission to deposit the amount before this<\/p>\n
R.P.No.1078\/07
\n                                    14<\/span><\/p>\n
court. It was also submitted that the review petitioners sent a money<\/p>\n
order to the respondents and filed a petition before the execution<\/p>\n
court seeking dismissal of the petition. I am of the view that the I.A.<\/p>\n
should be allowed so that the confusion is removed. Accordingly,<\/p>\n
the I.A. is allowed issuing the following directions :<\/p>\n
      The last two sentences of the judgment dated 30-07-2007 are<\/p>\n
deleted and will stand substituted by the following two sentences:<\/p>\n
      Even as I uphold Ext.P12, there will be a direction that the<\/p>\n
decision taken under Ext.P12 will be conditional on the decree<\/p>\n
holder respondents paying a sum of Rs. 1501\/- to the writ petitioners<\/p>\n
by way of costs which can be paid either to the them directly or<\/p>\n
through their counsel in this court within two weeks from today. If<\/p>\n
payment as directed above is not made within the stipulated time,<\/p>\n
Ext.P11 will stand dismissed and Ext.P12 will stand set aside and<\/p>\n
the writ petition will stand allowed.\n<\/p>\n
      13.    The Review Petition stands dismissed and I.A.No.<\/p>\n
12919\/2007 is allowed as above. However, the execution court is<\/p>\n
directed to explore the possibilities of a settlement of the disputes<\/p>\n
between the decree holders and the judgment debtors either by<\/p>\n
R.P.No.1078\/07
\n                                   15<\/span><\/p>\n
referring the disputes to mediation or at that court’s option by<\/p>\n
ordering attendance of the concerned parties in the court and by<\/p>\n
having discussions with them and their respective counsel over<\/p>\n
settlement, if any possible.\n<\/p>\n
      Considering the above directions,      the execution court is<\/p>\n
directed not to enforce delivery of the decree schedule properties for<\/p>\n
a period of three more months after the first posting of the E.P. on<\/p>\n
receiving a copy of this judgment.\n<\/p>\n<\/p>\n
                                            PIUS.C.KURIAKOSE
\n                                                     JUDGE<\/p>\n
sv<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.K. Viswambaran vs State Of Kerala on 8 May, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-232489","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.K. 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