IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. Vinod Chandran, J.

Seetha Ramachandran @ Seetha Varma and Others

Vs.

K. B. Radhakrishnan

C.R.P. No. 353 of 2006

Dated this the 9th day of October, 2012

Head Note:-

Civil Procedure Code, 1908 - Order 23 Rule 1 & 3, Section 151 - O.23 R.1 deals with suits and part of the claims raised in the suit. It cannot apply to interlocutory applications and the orders passed thereon.

For Revision Petitioners:-

For Respondent:-

1. Dinesh R. Shenoy

Amicus Curiae:-

1. Arun Bechu N.N.

O R D E R

1. The revision petitioners are the defendants in a suit for specific performance filed by the respondent. Suit was compromised and decree was passed on 24-02-2000. Subsequently, alleging fraud and coercion as also challenging the competence of the Power of Attorney, of the plaintiff to enter into a compromise, the defendants filed I.A. No. 3587/2000 dated 04-08-2000, under Order 47 Rule 1 read with Sections 114 and 151 of the Civil Procedure Code. The plaintiff filed objections. Subsequently, on advise, the defendants filed a memo stating:

"the petitioners beg to withdraw I.A. No. 3587/00 as the same is not maintainable in law and the petitioners are today filing an interlocutory application under the proper provisions of law."

The said memo was recorded and the I.A. was closed on 24-01-2001. On 25-01-2001 another I.A. was filed seeking the very same reliefs, but however, invoking the power of the Court under the proviso to Rule 3 of Order 23. That was rejected holding that, the earlier I.A. was withdrawn; without reserving liberty, and the subsequent application cannot be entertained by reason of the specific bar under Order 23 Rule 1.

2. The counsel for the revision petitioner Sri. N. Subramaniam would canvass for the position that Order 23 Rule 1 deals with only original proceedings and not interlocutory applications arising out of such original proceedings. The counsel for the plaintiff/respondent Sri. Dinesh Shenoy, however would contend that applying the provisions of S.141 of the CPC, all proceedings in a Civil Court, including those termed as interlocutory, will come within the ambit of Order 23 of Rule 1. The learned counsel for the respondent would also appeal to this Court to consider the facts upon which the setting aside of the decree is sought for in the Court below and the hardship to which the respondent/plaintiff is put to in not being able to deal with the properties though having complied with the letter and spirit of the compromise. It is also specifically pointed out that the respondent had not objected to the application filed under Order 23 Rule 1 and only when the same was posted for evidence, the withdrawal memo was filed; clearly as a dilatory tactic.

3. At the outset, this Court is not persuaded to go into the facts or adjudicate upon the claim of fraud and coercion made before the Court below. Though the impugned order extracts the pleadings in the interlocutory application; the consideration was confined to the maintainability of the application. Hence, bereft of the facts, this Court is called upon to consider only whether the application subsequently filed under a different provision is barred by virtue of the provisions of Order 23 Rule 1, since the withdrawal of the earlier application was without leave to file a fresh application. Further, this Court has also to deal with the question of limitation which was considered by the Lower Court and found against the revision petitioners.

4. Order 23 Rule 1 deals with withdrawal and adjustment of suits. Rule 1 specifically confers on the plaintiff the right to abandon the suit as such or a part of the suit claim against all or any of the defendants. The only caveat being with respect to minors or other persons to whom the provisions of Rule 1 to 14 of Order 32 extend. We are not concerned with any such parties in the above case. By sub-rule (3) of Rule 1 of Order 23, it is provided that when the Court is satisfied that the suit is bound to fail by reason of some formal defect or there are sufficient grounds for allowing a plaintiff to institute a fresh suit; then, the plaintiff may be permitted to withdraw the suit or the part of the claim reserving liberty to institute a fresh suit. Sub-rule (4) also mandates that in the event of no liberty being granted under sub-rule (3), then the plaintiff shall be precluded from instituting any fresh suit in respect of the very same subject-matter or such part of the claim. The first issue to be dealt with is whether an interlocutory application also would be regulated by the said provisions and whether it would be necessary for the plaintiff or even a defendant to apply for and obtain leave as provided under the provisions of sub-rule (3) of Rule 1 of Order 23.

5. The learned counsel for the petitioner would place reliance on the decisions of various High Courts and the Supreme Court to contend that what is intended by Order 23 Rule 1 is only withdrawal of original proceedings instituted before a Civil Court and does not take within its sweep any interlocutory proceedings which crop up in the course of the original proceedings. Latchayya and Another v. Surya Prakasa Rao, AIR 1928 Madras 1165, was a case in which after obtaining a decree for possession of certain items of land as also mesne profits; the plaintiff applied before the Court for ascertainment of future mesne profits. This application was withdrawn since the Appellate Court had modified the decree, and a second application asking for ascertainment of not only future mesne profits but also for re-ascertainment of past mesne profits, was filed. The defendant contended that the withdrawal of the earlier application would tantamount to abandonment of the claim, since the plaintiff had not sought for leave under Order 23 Rule 1(3). The Division Bench held that Order 23 Rule 1(3) does not in terms apply. It was held to be intended to be applicable only when a suit or a part of a suit claim is withdrawn. Thiruvankitachariar, J. in his concurring judgment, held that the withdrawal of the suit or abandonment of the claim which has the effect of barring a fresh suit can only relate to withdrawal or abandonment before the decree is passed and does not apply to suits in which decrees have already been passed. That was the case in Latchayya's case (supra) and also in the present revision.

6. B.A. Stores Syndicate Vs. Stores and Engineering Supply Co., AIR 1952 (39) Calcutta 411 (CN 116) was a commercial suit in which under the rules of that Court, the defendant ought to have filed its affidavit of documents within a fortnight of filing of written statement. The fortnight having expired, and the defendant not having responded to a summons, the defence was struck off. When the matter was listed before Court the defendants appeared for hearing and moved the Court for an order that the suit be removed from the list and leave granted to defend the suit and also file affidavit of documents. That application was withdrawn by the defendant intimating that it would prefer an appeal from the order of the Master. In the appeal, it was contended before Court that since one of the prayers in the first application before Court, which was withdrawn, was for extension of time, the same having not been withdrawn with liberty, there cannot be a fresh application for a similar relief. The Court however held that Order 23 Rule 1 Civil Procedure Code was not shown to apply to orders in interlocutory applications in a suit.

7. Rameswar Sarkar v. State of West Bengal & Others, AIR 1986 Calcutta 19, was a case in which an application for withdrawal of a suit was made by the plaintiff before the Court below. Subsequently, the plaintiff filed another application under Section 151 of the Code of Civil Procedure to withdraw the said application. The facts in brief were that the plaintiff, awarded a contract by the State; in the course of such work, carried out some additional work. The awarded work was subject of arbitration and with respect to the additional work the plaintiff filed a suit. The Court having expressed a view that this also should be referred to arbitration, he filed an application under Order 23 Rule 1 for withdrawal of the suit. The Court dismissed the suit for non-prosecution. The petitioner then realizing his folly filed an application under Section 151 for withdrawal of the application. The High Court was concerned with the question as to whether in exercise of its inherent power, the Court could allow withdrawal of application for withdrawal and order setting aside of the order dismissing the suit for non-prosecution. The Calcutta High Court held that the scope of Section 151 was very wide and the same is to be invoked when there is no remedy prescribed under the CPC. Order 23 Rule 1 was held to be confined to withdrawal of a suit with or without liberty to file a fresh suit. That provision was held to be inapplicable in so far as the withdrawal of a interlocutory application for withdrawal of suit itself was concerned. The scope of Section 151 as held by the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 was extracted

"The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."

8. The said decision of the Calcutta High Court was quoted with approval by the Honourable Supreme Court in Jet Ply Wood (P) Ltd. Vs. Madhukar Nowlakha, 2006 (2) KLT 624. In that case the plaintiff sought for specific performance of an agreement to sell. After the appearance of the defendants, the plaintiff sought for leave to withdraw the suit on the ground that the defendants were prepared to settle the matter. No leave was sought to file a fresh suit. The owners of the property however sold the property to third parties within a month and the plaintiff applied for withdrawal of the application for withdrawal of the suit. The plaintiff was before the High Court; against the rejection of his application, which reversed the judgment of the lower Courts and restored the suit to the file of the Trial Court. The Supreme Court while confirming the order of the High Court, held that for filing of an application for re-calling an order permitting withdrawal of the suit, the provisions of Section 151 could be resorted to in the interest of justice.

9. In opposition to the contention taken by the respondent under Section 141 of the CPC, the learned counsel for the petitioner would take me through Sankaranarayana Vs. G.T. Rao, AIR 1971 A.P. 332. In a suit, separate applications for amendment and impleadment was dismissed for default and subsequent applications to restore them also were rejected. Again application for amendment and impleadment were separately filed with the same prayers and the matter was in revision from the dismissal thereof. Relying on the provisions of Order 9 Rule 9, CPC, it was contended that no fresh application could be brought on record. Since Order 9 Rule 9 provided for only suits, Section 141 was pressed into service. It was held that Order 9 Rule 9 was applicable only to suits and Section 141 does not extend such application to interlocutory orders. The words "all proceedings in any Court of civil jurisdiction" was argued, as taking in interlocutory proceedings too. Section 141, was held to be, intended to enable the adoption of the procedure, provided in CPC for conduct of suits, also in other civil proceedings of an original nature. Mulla on CPC, 13th edition, was quoted to show that Section 141 intended only that the procedure in probate, guardianship and so on and so forth shall also be regulated by the procedure of CPC. A plethora of decisions of the Privy Council and various High Courts were discussed and it was held:

"The applications for amendment of pleadings and for addition of parties are only interlocutory matters and are not proceedings of original nature. I am therefore, of the view that such applications are not 'proceedings in Civil Court' within the meaning of Section 141 Civil Procedure Code."

10. On the strength of the judicial thought evinced in the decisions cited above, I am persuaded to hold that Order 23 Rule 1 deals with suits and part of the claims raised in the suit. It cannot apply to interlocutory applications and the orders passed thereon. Further as held in Latchayya's case (supra): here is a case in which a decree has been passed. I respectfully draw immense support from Jet Ply Wood (P) Ltd case (supra): too. While sub-rule (4) of Order 23 Rule 1 was held to be restrictive of a fresh suit, if no leave had been sought; an application for withdrawal of a withdrawal application under Order 23 Rule 1 was held to be maintainable under Section 151. Of course, as pointed out by the learned counsel for the respondent, only in extreme cases; where interests of justice demanded it.

11. In the instant case also, the suit was compromised on 24-02-2000. The defendants filed their application for setting aside the compromise decree and restoring the suit on 04-08-2000 under the provisions of Order 47 as noticed above. Subsequently, a memo was filed seeking withdrawal of that application purportedly on the premise that a review would not be maintainable in the case of a compromise decree, since the proviso to Rule 3 of Order 23 specifically provides a re-consideration by the very same Court. That memo dated 24-01-2001 was recorded and the Court closed the IA. The fresh application was filed on 25-01-2001. The memo was recorded and the I.A. closed. The memo set forth the plea of non-maintainability and held out the intention to file a proper application. Here too there are allegations of fraud & coercion. Despite the arguments attempted on such allegations, by both counsels, this Court refused to consider the same, for fear of arrogating to itself the powers of the original Court; whose satisfaction under Order 23 Rule 3 is the essence of a compromise decree, and the proviso specifically confers such power to vary an order passed, on that Court itself.

12. In exercising revisional jurisdiction and examining as to whether the order is vitiated by illegality or material irregularity, this Court cannot but view the issue through the contextual lenses of ultimate justice. From what has been stated by the Supreme Court in Manoharlal Chopra's case (supra) the power under Section 151 is inherent and does not flow from the Code as such. Both under proviso to Rule 3 of Order 23 as also Section 151, this Court is of the opinion that the findings above as also interests of justice makes it expedient that the Court below consider the matter afresh, shorn off the technical reservations; which in any event has been held by this Court as being non-existent. But that is not to be taken as an expression by this Court on the allegations of fraud, coercion, competence of the Power of Attorney or any of the pleadings for setting aside of the compromise decree. Those are left open.

13. Now what has to be examined is the question of limitation. The learned counsel for the revision petitioner would submit that Article 137 of the Limitation Act, would be applicable since the proviso to Order 23 Rule 3 does not provide any period of limitation. In such circumstances, the limitation would be three years from, when, the right to apply accrues. The learned counsel for the respondent however, would contend that what is specified by the proviso is the forum in which a compromise decree can be challenged and essentially the power of the Court is to be drawn from Order 47 i.e., the power of review. Since, Article 124 provides thirty days for such exercise to be initiated, the present petition as also the earlier petition is to be held as having been filed outside the period of limitation. The learned counsel for the respondent also would place reliance on Banwari Lal Vs. Chando Devi, AIR 1993 SC 1139.

14. Banwari Lal's case (supra) was one in which the history and also the scope and ambit of the proviso introduced in Rule 3 along with Rule 3A in Order 23 was considered extensively. It was noticed that earlier the compromise decrees were challenged in separate suits which dragged on for years. Hence, suits on the ground that the compromise on which the decree is based was not lawful was barred by Rule 3(A) of Order 23 by an Amendment of 1976. Simultaneously, sub-rule (m) under Rule 1 of Order 43 which provided for an appeal against an order under Order 23 Rule 3, was deleted. Hence, Rule 1(A) was introduced in Order 43 providing a right of appeal against the order recording a compromise or refusing to record a compromise. The position before amendment was that Section 96(3) though bars an appeal against the decree passed, with the consent of the parties, it is valid and binding on the parties only so long as it is not set-aside by the procedure prescribed in the Code itself. One such remedy available was of filing an appeal under Order 43 Rule 1(m) against the order recording the compromise and if it was set-aside there is no necessity to file an appeal against the decree. Similarly, a suit also could be filed for setting aside such decree on the ground that the decree is passed on invalid and illegal compromise. However, after the amendment neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available. Sub-rules (1) & (2) of Rule 1A of Order 43 were introduced to question the decree on the ground that the compromise should or should not have been recorded and in that appeal the order, recording the compromise or failing to do so, could also be challenged. It was also valid to approach the very same Court under the proviso to Order 23 Rule 3.

15. Rule 3 of Order 23 provides the compromise of a suit on adjusting wholly or in part, by any lawful agreement in writing and signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit; and also satisfies the Court of such factum of compromise or satisfaction. However, on one of the parties denying that such adjustment had occurred or satisfaction of the plaintiff has been arrived at, then, by the proviso the party denying such adjustment or satisfaction gets a remedy before the very same Court. The Court while considering such application has also to keep the explanation to the proviso i.e., the illegality of an agreement or compromise which is void or voidable under the Indian Contract Act, 1872, in its mind. The application for exercise of power under proviso to Rule 3 of Order 23, has been held by the Supreme Court in Banwari Lal's case (supra) to be one which, can be labelled under Section 151 of the Code. But since, the Code specifically confers such power, in examining the validity of a compromise, the Court necessarily has to draw upon proviso to Rule 3 of Order 23 and not on its inherent powers. If so, then, it cannot be said that the power conferred under the proviso would be one drawn from Order 47. True, the forum in which an application under the proviso would lie is specified therein. But, that alone would not lead to a conclusion that the power is one of review and is one drawn from Order 47. When the amendment bringing in Rule 3A of Order 23 as also the proviso to Rule 3 of Order 23 and Rule 1A of Order 43 was brought in, the Legislature was aware of Order 47 by which power of review of its own order was granted to a Court. However, it was thought fit that a proviso be introduced akin to Section 151, providing for relief against fraudulent and illegal compromises.

16. The learned counsel for the respondent has a further contention that there are other provisos in the Code wherein power has been granted to the Court to consider an interlocutory application and the Limitation Act specifically provides for the period after which such applications are barred. Order 9 Rule 9 provides for setting aside a decree against a plaintiff for default and Rule 13 provides for setting aside ex parte decrees. Thirty days is the limitation provided under the Article 122 & 123 of the Limitation Act. Rule 3 of Order 23, even if held to be not drawing power under Order 47, it is in the nature of a review and hence limitation would be thirty days under Article 124, is the argument.

17. The proviso to Rule 3 of Order 23 is wider in its import and application, than review under Order 47. Review is confined to (i) discovery of new and important matter or evidence which was not within the knowledge of a person and could not be produced by that person even after exercise of due diligence at the time when the decree or order was made or (ii) on account of some mistake apparent on the face of the record or (iii) for any other sufficient reason. Though any other sufficient ground was also understood to be adopting the colour of the preceeding grounds, in recent times the purport has been expanded taking in even subsequent events. Board of Control for Cricket in India Vs. Netaji Cricket Club, (2003) 4 SCC 741 laid down that the rule that "any other sufficient reason" should be at least analogous to the other specified grounds; was not a universal rule. However, a later decision of the Honourable Supreme Court in State of West Bengal Vs. Kamal Sengupta, (2008) 8 SCC 612 held that the one line observation regarding the deviation from the earlier judgments is to be treated as confined to the facts of that case:

"The one line observation contained in para 93 that while exercising review jurisdiction the Court can take into consideration subsequent event has to be treated as confined to the facts of the case involving the controversy between rival Cricket Associations."

18. Culling out the principles underlying Order 47 Rule 1 it was held:

i. The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

ii. An error which Is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

iii. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

iv. A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a co-ordinate or Larger Bench of the tribunal or of a superior Court.

v. While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated an error apparent.

vi. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.

19. This is not what is contemplated by the proviso to Rule 3 Order 23. The proviso to Rule 3 Order 23 can be invoked on the mere denial that the adjustment as recorded by the Court has actually happened or on denial of the satisfaction of the plaint claim. The explanation also makes it mandatory that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule. Even a voidable contract, without initiating any proceedings to that end, could result in the compromise decree being set-aside for the mere asking, on the satisfaction of the Court that it is a voidable agreement under the Indian Contract Act, 1872. Article 137 of the Limitation Act specifically takes into account those situations were no limitation is provided for. Limitation is not regulated by the Code of Civil Procedure, but by the Limitation Act. It cannot be said that the power of the Court under proviso to Rule 3 of Order 23 is one drawn from Order 47 or even deemed to be a proceeding for review.

20. To clothe proviso to Rule 3 Order 23 with the garb of review would be a turnabout from the classical allegory of the jackal falling into the blue dye. Order 47 is fettered with the caution of self-restrain which is an essential attribute of all judicial action. Proviso to Rule 3 Order 23, as is Section 151, is an exhortation to the innate judicial conscience of every Court to fulfill the ultimate goal of justice. In view of the findings above, especially, drawing strength from the Supreme Court decision in Banwari Lal's case (supra); more specifically the power under Order 23 Rule 3 being compared and likened to that under Section 151, the proviso under Rule 3 of Order 23 cannot be one conferring powers merely of review and hence would be regulated by Article 137 of the Limitation Act. The application before the Court below hence cannot be said to be one barred by limitation.

21. Incidentally, a question arose as to the invocation of the remedies available under the proviso to Rule 3 of Order 23 and Rule 1A of Order 43. Whether after passing of a decree, proviso to Rule 3 Order 23 could be invoked. Banwari Lal's case (supra), was a case in which a compromise deed was recorded and the suit dismissed as per the compromise deed. It was also directed that "decree sheet be prepared accordingly" (paragraph 3 of the decision). After having considered the issue elaborately, the effect of the Amendment Act of 1976, introducing a proviso along with explanation to Rule 3 of Order 23 and Rule 1A of Order 43 was summarised in Paragraph 13. It was also held:

"As such a party challenging the compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which, he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code."

After holding so, as noticed earlier, the Hon'ble Supreme Court labelled the power under proviso to Rule 3 Order 23 as one under Section 151 of the Code and found that since specifically such power has been vested by the proviso, it is not the inherent power which is to be invoked but the proviso conferring such power. On the facts of the above case the Act of the Subordinate Judge in entertaining the application filed under the proviso to Rule 3 Order 23 was held to be perfectly justified. This, in effect, dispels the doubt in the mind of this Court, since the proviso was invoked after the decree was passed.

22. It is also apposite to notice the decision of a three Judge Bench decision in Kishun Vs. Bihari, AIR 2005 SC 3799. The dispute was between two brothers one of whom was gifted a property by their father. The donee son had approached the Tahsildar for effecting mutation which was objected to by the other son. A compromise, purportedly entered into between the sons agreeing to share the property was filed before the Tahsildar. The donee son objected to it and hence no final orders were passed by the Tahsildar. In the meanwhile, the son, who disputed the gift, filed a suit seeking cancellation of the gift. Before Court, the plaintiff sought for a compromise decree based on the compromise petition filed before the Tahsildar. The case had a chequered career and initially though the Trial Court refused to record the compromise, in compliance with the appellate order, it subsequently did pass a decree. That decree was reversed again in appeal. In the course of Second Appeal before the High Court, both the sons died. Without being aware of this the High Court disposed of the matter.

23. The legal representatives were before the Hon'ble Supreme Court. At the outset it was found that the decree passed against and in favour of the parties, who were no more, was a nullity. What is pertinent to the instant case is the fact that the Hon'ble Supreme Court in the above decision held that the interest of justice would be subserved if the orders and decree passed in the suit and the appeal and Second Appeals are set-aside and the suit remanded to the Trial Court for making a proper enquiry into the question whether there was a compromise of the disputes; in terms of the proviso to Order 23 Rule 3 of the Code. This provides further support to this Court, to remand the matter to the Trial Court for fresh consideration of the question as to whether the compromise was one validly entered into as provided under Rule 3 of Order 23.

24. The compromise is of the year 2000 and the impugned order of the year 2005. The Civil Revision Petition is pending before this Court from the year 2006. Relegating the revision petitioner to the appellate remedy would not serve the purpose of ultimate justice nor can it be held to be an absolute mandate of law. On the order recording the compromise being set-aside, the basis or the substratum on which the decree was passed vanishes and the decree would stand recalled.

25. On the strength of the discussions above the impugned order is set-aside. When the matter was being remanded to the Court below for fresh consideration forceful submissions were made by the learned counsel for the respondent highlighting the delay caused and alleging dilatory tactics adopted by the petitioner before the Court below. While expressing no opinion on whether the petitioners had resorted to any dilatory tactics, this Court cannot but focus on the issue that the plaintiff has not been able to enjoy the fruits of the compromise decree entered into long back. The specific bar against adjournment, unless for recorded reasons in Rule 3 also cannot be ignored. It reflects the anxiety of the Legislature and its concern to avoid delay when compromises are entered into and then resiled from, recklessly. In such circumstances, it is directed that the petitioners and the respondent appear before the Court below on 26-11-2012. The Court below shall give one opportunity to both parties to adduce evidence within a week thereafter, and only if such request is made. The matter shall be heard and disposed of at any rate within three months from the date of appearance i.e., before 26-02-2013.

This Court places on record the valuable assistance of the Amicus Curiae Sri. Arun Bechu N. N. in resolving the issue.

(2012) 269 KLR 448

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH 

WEDNESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934 

CRP.No. 104 of 2005 (H) 

----------------------- 

CMA.55/2004 of DISTRICT COURT,KOZHIKODE EA.NO.284/2004 IN EP.NO.398 OF 2002 IN OS.291/2000 of PRINCIPAL SUB COURT, KOZHIKODE 

....... 

REVISION PETITIONER(S)/APPELLANTS/PETITIONERS: 

---------------------------------------------------------------------------------- 

1. TANGERINE A.K.,AGED 48 YEARS, W/O. A.R.BABU ANANTHAKRISHNAN, 5/874, KALATHINKUNNU, KOZHIKODE TALUK,KOZHIKODE DISTRICT, NOW RESIDING AT DOOR NO.1129, C-1/46,"KRISHNA KRIPA", INDIRA NAGAR, KADAVANTHRA, ERNAKULAM DISTRICT. 

2. TAMMY A.K., AGED 31 YEARS, D/O A.R.BABU ANANTHAKRISHNAN, 5/874, KALATHIN KUNNU, KOZHIKODE TALUK, KOZHIKODE DISTRICT, NOW RESIDING AT DOOR NO.1129, C-1/46, "KRISHNA KRIPA", INDIRA NAGAR, KADAVANTHRA, ERNAKULAM DISTRICT. 

3. BARRINGTON ANTONY A.R., AGED 30 YEARS, S/O. A.R.BABU ANANTHAKRISHNAN, 5/874, KALATHINKUNNU, KOZHIKODE TALUK, KOZHIKODE DISTRICT, NOW RESIDING AT DOOR NO.1129, C-1/46, "KRISHNA KRIPA", INDIRA NAGAR, KADAVANTHRA, ERNAKULAM DISTRICT. 

4. TRONCY LESLY JOSEPH A.R., AGED 27 YEARS, S/O. A.R.BABU ANANTHAKRISHNAN, 5/874, KALATHINKUNNU, KOZHIKODE TALUK, KOZHIKODE DISTRICT, NOW RESIDING AT DOOR NO.1129, C-1/46 "KRISHNA KRIPA", INDIRA NAGAR, KADAVANTHRA, ERNAKULAM DISTRICT. 

BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.A.S.THOMAS SMITH 

RESPONDENT(S)/RESPONDENTS/DECREE HOLDER/ DECEASED JUDGMENT DEBTOR: 

--------------------------------------------------------------------------------- 

1. M/S.VANTAGE MARKETING, DOOR NO.1/4595 A, MALABAR BUILDING C.H.CROSS ROAD, EAST NADAKKAVU,REPRESENTED BY ITS MANAGING PARTNER P.VIJAYAN, AGED 51 YEARS, S/O. GOPALA KURUP, KULAGARAPALLIL HOUSE, KODAMMERI AMSOM DESOM, BADAGARA TALUK, KOZHIKODE DISTRICT. 

*2. A.R.BABU ANANTHAKRISHNAN, S/O. A.K.RADHAKRISHNAN, 5/874, KALATHINKUNNU, KOZHIKODE TALUK, KOZHIKODE DISTRICT (2ND RESPONDENT'S WHEREABOUTS ARE NOT KNOWN FOR THE LAST 7 YEARS AND 4 MONTHS). (D E L E T E D). 

*R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF PETITIONER VIDE ORDER DATED 13/1/2006. 

**ADDL.R3 IMPLEADED: R3. M.VISWANATHAN, AGE NOT KNOWN, S/O.SANKARAN, C.V. VILLA, C.H.CROSS ROAD, EAST NADAKKAVU, KOZHIKODE. 

(**R3 IS IMPLEADED AS PER ORDER DATED 13/01/2006 IN I.A.NO.1530/2005) 

R1 BY ADV. SRI.K.LAKSHMINARAYANAN BY ADV. SRI.N.L.KRISHNAMOORTHY R3 BY ADV. SRI.T.MADHU 

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2012, ALONG WITH CRP. 188/2008 AND CRP. 517/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss 

"C.R." 

V.CHITAMBARESH, J. 

------------------------------- 

CRP Nos. 104 of 2005, 188 of 2008 & 517 of 2008. 

------------------------------- 

Dated this the 25th day of July, 2012 

Head Note:-

Code of Civil Procedure, 1908 - Order XXII Rule 4 & Order IX Rule 13 - Indian Evidence Act, 1872 - Section 107 and 108 - Where the defendant was prevented by sufficient cause from appearing in the suit - The defendant being missing could not make arrangements for his appearance and was thus prevented by sufficient cause - the ex-parte decree for money should be set aside since sufficient cause had been well established. 

Code of Civil Procedure, 1908 - Order XXII Rule 4 & Order IX Rule 13 - Indian Evidence Act, 1872 - Section 107 and 108 - Defendant Missing - Burden of Proof - The burden shifts to the plaintiff to show that the defendant was alive when his wife and children asserted that they had not heard from him for seven years - The mere fact that some other person had also filed a suit and obtained an ex-parte decree against the defendant was not sufficient to discharge the burden - The court below was bound to draw presumption as regards the civil death of the defendant under the circumstances. 

ORDER 

A desperate bid by the wife and children of a 'missing' man to salvage their residential house from being proceeded against in execution of a decree for money. 

2. The allegation is that the defendant was an employee of the plaintiff firm and had misappropriated money while in service. The suit was filed for realisation of a sum of Rs.1,60,980/- with interest on the further allegation that the cheque later issued by the defendant was dishonoured. Crime No. 263/1997 on the file of the Kasaba Police station was registered for the alleged defalcation of money. It is conceded that the defendant who is the accused in the case is absconding and the criminal case remains long pending. The defendant reportedly did not return home from office on 16.09.1997 and the search for the missing person by his friends and relatives did not yield any result.

3. The whereabouts of the defendant had not been known since 16.09.1997 according to his wife and children who are the revision petitioners herein. It was their specific case that two complaints were given to the police on 17.09.1997 and on 07.09.1999 about the defendant missing. The defendant could not therefore enter appearance in the suit either personally or through counsel. An ex-parte decree for realisation of money was eventually passed against the defendant on 23.03.2001 which was put into execution. 

4. The wife and children waited for seven long years to call in aid the provisions of Section 107 and 108 of the Indian Evidence Act, 1872 (the 'Act' for short). A presumption as regards the civil death of the defendant could be drawn as his wife and children had not heard from him. The period of seven years expired on 15.09.2004 and applications were filed in the suit on 14.10.2004. I.A. No. 4192/2004 was filed for the purpose of impleading and I.A. No. 4193/2004 was filed to set aside the ex-parte decree. Both the applications were dismissed by a common order and are the subject matter of C.R.P. Nos.188/2004 and 517/2008. The latter case had been filed as a civil miscellaneous appeal in the lower appellate court and withdrawn to this court for disposal. 

5. The house of the defendant had in the meanwhile been attached in execution and brought to sale which was bid in auction by a stranger purchaser. E.A. No. 284/2004 in E.P. No. 398/2002 filed to set aside the sale was dismissed and affirmed in appeal by the lower appellate court. The same is also challenged in C.R.P. No. 104/2005 by the wife and children of the defendant. The auction sale had however not been confirmed or delivery effected in view of the interim orders in the Civil Revision Petitions. 

6. I heard Ms. N. Sudha, Advocate on behalf of the revision petitioners, Mr. K. Lakshminarayanan, Advocate on behalf of the decree holder and Mr. T. Madhu, Advocate on behalf of the auction purchaser. 

7. Sections 107 and 108 of the Act read as follows: 

107. Burden of proving death of person known to have been alive within thirty years - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 

108. Burden of proving that person is alive who has not been heard of for seven years - 

Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. 

The wife and children of the defendant could not have moved the court below earlier since the period of seven years after the defendant was found missing expired on 15.09.2004 only. The application for impleading under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC for short) was filed on 14.10.2004 itself. Similarly the application to set aside the ex- parte decree under Section 46 read with Order IX Rule 13 of the CPC was also filed on 14.10.2004. The applications were filed well within one month after the expiry of the period of seven years from the date of missing. The court below therefore erred in dismissing the applications for impleading and to set aside the ex-parte decree as belated. 

8. I am fortified in this view by the judgment of the Supreme Court in LIC of India Vs. Anuradha [(2004) 10 SCC 131] wherein it is held as follows: 

"In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have normally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of six years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead". 

(emphasis supplied). 

9. The plaintiff firm contended that service of notice was effected in the suit at the residential address of the defendant and that the same was proper. But Order IX Rule 13 of the CPC envisages also a situation where the defendant was prevented by sufficient cause from appearing in the suit. The defendant being missing could not make arrangements for his appearance and was thus prevented by sufficient cause. This is a fit case where the ex-parte decree for money should be set aside since sufficient cause had been well established. 

10. The burden shifts to the plaintiff firm to show that the defendant was alive when his wife and children asserted that they had not heard from him for seven years. This is the purport and import of Section 108 of the Act as has been judicially explained. The mere fact that some other person had also filed a suit and obtained an ex-parte decree against the defendant was not sufficient to discharge the burden. The court below was bound to draw presumption as regards the civil death of the defendant under the circumstances. 

11. It is of course true that the interest of a stranger auction purchaser would be protected despite the fact that the underlying decree is set aside. The following are the oft quoted decisions:

(i) Janatha Textiles Vs. Tax Recovery Officer [(2008) 12 SCC 582]. 

(ii) Ashwin S. Mehta Vs. Custodian [(2006) 2 SCC 385]. 

(iii) Gurjoginder Singh Vs. Jaswant Kaur [(1994) 2 SCC 368]. 

(iv) Padanathil Rugmini Amma Vs. P.K. Abdulla [(1996) 7 SCC 668]. 

(v) Janak Raj Vs. Gurdial Singh [AIR 1967 SC 608]. 

But the auction sale in the instant case had not been confirmed and added to this is the fact that the auction purchaser himself does not want the property. The auction purchaser has filed I.A. No. 2842/2011 in CRP No. 104/2005 seeking permission to withdraw the amount deposited by him. The auction purchaser is keen to get back the amount as he is facing two prosecutions under Section 138 of the Negotiable Instruments Act. There is therefore no impediment for setting aside the sale also while setting aside the ex-parte decree for money. I do so notwithstanding the stiff opposition of the decree holder that the auction purchaser should not be allowed to wriggle out of the sale.

12. Resultantly all the three Civil Revision Petitions are allowed. The ex-parte decree is set aside and O.S. No. 291/2000 on the file of the court of the Subordinate Judge of Kozhikode is resurrected to file. The wife and children of the defendant (presumed to be dead) are brought on record as supplemental defendants in the suit. The court below is directed to dispose of the suit on merits expeditiously within a period of six months from today. The auction sale conducted in execution of the ex-parte decree is also set aside in view of the unequivocal stand of the auction purchaser. The amount deposited by the auction purchaser shall be released to him by the court below as and when an application for cheque is put in. The wife and children of the defendant however undertakes not to create any encumbrance over the property till the suit is disposed of. 

The impugned orders are set aside and the Civil Revision Petitions are allowed. No costs. 

V. CHITAMBARESH JUDGE 

ncd 

(2012) 269 KLR 358 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN 

THURSDAY, THE 12TH DAY OF JANUARY 2012/22ND POUSHA 1933 

CRP.No. 203 of 2009 (C) 

AGAINST THE ORDER IN I.A.NO.1175 OF 2008 IN OS.NO.167 OF 2008 OF SUB COURT, THIRUVALLA 

REVISION PETITIONER/ NOT A PARTY IN IA: PLAINTIFF:

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A.RAMACHANDRAN PILLAI, AGED 57 YEARS, S/O.K.ACHUTHAN NAIR MAROTTIKULATH VEEDU, EZHUMATTOOR P.O. MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.  

BY SENIOR ADV. SRI.K.RAMAKUMAR ADV. SRI.T.RAMPRASAD UNNI ADV. SRI.PREM NAVAZ. 

RESPONDENTS/PETITIONER AND COUNTER PETITIONERS/DEFENDANT:

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1. D.BHARATHIYAMMA, JAYANIVASIL, PALLICKAL P.O., KOATTANAM MAVELIKKARA TALUK, FROM, MAROTTIKULATH VEEDU EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK.  

2. INDIRADEVI, JAYANIVAS VEETTIL, PALLICKAL P.O., KOTTANAM, MAVELIKKARA TALUK.  

3. G.JAYABABU, JAYANIVAS VEETTIL, PALLICKAL P.O., KOTTANAM, MAVELIKKARA TALUK.  

4. ABDULSHUKKUR, MAMKUTTATHIL VEETTIL, PURAMATTOM VILLAGE, THIRUVALLA TALUK.  

R4 BY ADV. SRI.K.A.ABDUL SALAM ADV. SRI.M.A.HAKIM SHAH R1 RO R3 BY ADV. SRI.P.CHANDRASEKHAR 

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

K.T.SANKARAN, J. 

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C.R.P. NO. 203 OF 2009 

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Dated this the 12th day of January 2012 

Head Note:-

Question of Law Involved in this Case 

1) What is the procedure to be followed when the plaintiff on whose behalf her next friend instituted the suit, comes forward and says that she is not of unsound mind or a person of feeble mind and that she does not want to continue to prosecute the suit?  

2) Whether it is mandatory to remove the next friend before disposing of the suit on the application of the plaintiff on whose behalf the next friend instituted the suit?  

3) Whether it is mandatory that after removal of the next friend the suit should be continued by the plaintiff?  

Held:- I am also not inclined to accept the contention raised by the learned counsel for the petitioner that without removal of the next friend, the Court has no jurisdiction to dispose of the suit accepting the plea of the plaintiff that she is not a person of unsound mind or a mentally infirm person. All that is required is that the Court should be satisfied that the plaintiff is either a minor or a person of unsound mind or a person who is not capable of protecting his interest and that it is required to allow the next friend to institute the suit on behalf of such person. If it is found by the Court that the interest of the next friend is adverse to that of the plaintiff and that the plaintiff does not want to continue to prosecute the suit, nothing prevents the Court from taking the suit off the file. It is not mandatory that the Court should first remove the next friend and then allow the prayer made by the plaintiff. It can be done simultaneously. I am also not inclined to accept the contention raised by the learned counsel for the petitioner that after removal of the next friend, it is mandatory that the suit should be continued by the plaintiff. If the Court finds that the plaintiff is not a person of unsound mind or having any other infirmity, it is for the plaintiff to decide whether he/she should continue to prosecute the suit or to withdraw the suit or to compromise the suit.  

Civil Procedure Code, 1908 - Order 32 Rule 15 - Whether the next friend has any right to cross examine the plaintiff who gives sworn statement before Court in an enquiry under Rule 15 of Order XXXII that she is not mentally infirm or a person of unsound mind?   

Held:- If the plaintiff, on whose behalf a next friend instituted the suit, appears before Court and proves to the satisfaction of the Court that he is not a person of unsound mind or a person having a feeble mind or that he is a person who is capable of protecting his own interest, the Court is bound to protect the interest of such plaintiff. When the law provides that the next friend should have no interest adverse to that of the plaintiff on whose behalf the next friend instituted the suit, it cannot be said that the next friend would have a right to cross examine the plaintiff. In an enquiry under Rule 15 of Order XXXII, the Court is not expected to decide the dispute between the plaintiff and the next friend. The enquiry is limited to the question whether the next friend should be allowed to institute the suit on behalf of the plaintiff on the ground that the plaintiff is not entitled to protect his interest or on the ground that the plaintiff is a minor.  

Kerala Civil Rules of Practice - Rule 212 - Plaint or original petition on behalf of a minor - The stipulation that an affidavit of a disinterested person should be filed is only to protect the interest of the plaintiff and to ensure that the next friend has no interest, direct or indirect, in the subject matter of the suit.  

Held:- No such affidavit was filed in the present case. That itself is a sufficient ground to reject the contention put forward by the petitioner. Even going by the averments in the plaint and on the admitted facts, the petitioner is a person having interest adverse to that of the plaintiff. He is not entitled to act as the next friend of the plaintiff. He cannot be allowed to continue to prosecute the suit on behalf of the plaintiff, to the detriment of her interest.

O R D E R 

The questions of law involved in this Civil Revision Petition are the following:

1) What is the procedure to be followed when the plaintiff on whose behalf her next friend instituted the suit, comes forward and says that she is not of unsound mind or a person of feeble mind and that she does not want to continue to prosecute the suit? 

2) Whether it is mandatory to remove the next friend before disposing of the suit on the application of the plaintiff on whose behalf the next friend instituted the suit? 

3) Whether it is mandatory that after removal of the next friend the suit should be continued by the plaintiff? 

4) Whether the next friend has any right to cross examine the plaintiff who gives sworn statement before Court in an enquiry under Rule 15 of Order XXXII that she is not mentally infirm or a person of unsound mind? 

5) Whether the plaintiff in such a suit can approach the Court on her own and contend that she is not a person of unsound mind or a person of feeble mind and that she does not want to continue the suit, or is it necessary that an application should be filed on her behalf by some other person or the defendant? 

2. The plaintiff in the suit (O.S.No.167 of 2008 on the file of the Court of the Subordinate Judge of Thiruvalla) is D.Bharathiyamma represented by her next friend A.Ramachadran Pillai. The defendants in the suit are the daughter of Bharathiyamma, the son of first defendant and the assignee of the property from Bharathiyamma.

3. The relief prayed for in the suit is for cancellation of the sale deed executed by Bharathiyamma in favour of the third defendant in the year 2008 in respect of the plaint schedule property having an extent of 28 Ares.

4. In the plaint, the next friend of the plaintiff stated thus:

"2. The plaintiff is enfeebled by old age and mentally infirm. On account of her mental infirmity she is incapable of understanding business and forming a rational judgement as to its effect on her. She does not have even the capacity to arrive at reasonable judgement as to the consequences of a contract and its effect on her interest and hence she is represented in this suit by her son as the next friend. 

...... ..... 

12. Thereafter he contacted the plaintiff and enquired how and why she executed the sale deed and she told her son that she was unduly influenced by the defendants 1 and 2 and that the sale deed happened to be executed virtually at their end. Since the sale deed has been apparently executed by the feeble minded plaintiff and under the undue influence of the defendants 1 and 2 the same is to be adjudged voidable and ordered it to be delivered up and cancelled on the following reasons:- 

....... ......." 

5. Bharathiyamma (the plaintiff) filed I.A.No.1175 of 2008 praying to conduct an enquiry under Rule 15 of Order XXXII of the Code of Civil Procedure, to take her evidence and any other evidence and to take the suit 'off the file'. In the affidavit accompanying the application, Bharathiyamma stated that she is not a person of unsound mind or a person of feeble mind. The suit was instituted by her son as next friend only to wreck vengeance against her. She was having disputes with her son for the last several years. The next friend has no right to institute the suit on behalf of the plaintiff. The plaintiff also stated that O.S.No.282 of 2003 filed by her before the Munsiff's Court, Thiruvalla against the next friend Ramachandran Pillai is pending in the transferee court. Ramachandran Pillai had instituted O.S.No.554 of 1998 on the file of the Munsiff's Court, Thiruvalla against Bharathiyamma and also defendants 1 and 2 in the present suit. That suit is also pending. The plaintiff also stated that Ramachandran Pillai had instituted O.S.No.77 of 1998 against her before the Munsiff's Court, Thiruvalla. That suit was dismissed. The Appeal and Second Appeal therefrom were also dismissed. O.S.No.77 of 1998 was a suit for specific performance of an alleged oral agreement for sale in respect of the property in question, filed by Ramachandran Pillai against Bharathiyamma. The plaintiff also stated that on 22.7.2008, Ramachandran Pillai had filed a Caveat before the same court against her and others. In the suits referred to above and in the Caveat, she is not described as a person of unsound mind or mental infirmity. The present suit was filed on 14.8.2008.

6. The court below recorded the statement of the plaintiff on oath. She stated before Court that since 1998 she is residing with her daughter. She stated before Court that she was the plaintiff in a suit before the Sub Court, Thiruvalla and she had a case before that Court earlier. The details of the case were stated in her evidence. She stated that she was residing with her son Ramachandran Pillai after the death of her husband and the behaviour of Ramachandran Pillai towards her was intolerable. She stated that an extent of 2.5 Acres of land was given to her son Ramachandran Pillai to ensure that she would be protected by him. But he did not do so. Therefore, she was constrained to leave her son and to live with her daughter. The plaintiff also stated that the plaint schedule property was sold by her to Shukur, the third defendant, on 15.7.2008 and she received consideration for the same. The plaintiff stated thus: She stated that she transferred the property to the third defendant out of her free will and volition. Ramachandran Pillai was not helping her and the suit was also not to help her. In categoric terms, the plaintiff stated in evidence before Court thus: All the relevant details regarding the property, the transfer of the same and the previous litigations in respect of the property were stated by the plaintiff in detail in her sworn statement made before Court.

7. The court below allowed I.A.No.1175 of 2008 and the suit itself was dismissed. The learned Subordinate Judge recorded that after examining the plaintiff, there was no reason to believe that the plaintiff is a mentally ill person. The learned Subordinate Judge observed that the plaintiff was having sound health, she was capable of understanding things and she gave voluntary statement before Court. The learned Subordinate Judge held that the plaintiff is mentally and physically perfect and sound. It was noticed in the order that Ramachandran Pillai did not care to give any evidence before Court. The order in I.A.No.1175 of 2008 is under challenge in the Civil Revision Petition filed by Ramachandran Pillai.

8. It is relevant to note here that in paragraph 5 of the plaint itself, the next friend stated thus:

"5. However, the next friend of the plaintiff continues to be in possession and enjoyment of the said 65 cents of land and he is taking the yield therefrom. While the plaintiff was planning to dispose of the said property the next friend of the plaintiff on coming to know of it expressed his willingness to purchase the said property and though a concluded contract was entered into between the plaintiff and the next friend on 15.11.96, the plaintiff under the undue influence of the 1st defendant refused to convey the said property which resulted in several suits." 

9. It is also relevant to note that in the present Civil Revision Petition, Bharathiyamma is the first respondent and no application is filed by the petitioner to appoint a guardian for her. That means, in 2009, when the Revision was filed by the petitioner, he has no case that Bharathiyamma was having any mental infirmity or that she was of unsound mind.

10. The learned counsel for the petitioner submitted that though Ramachandran Pillai had filed a suit against his mother (plaintiff in the present suit), that suit had attained finality. The fact that the petitioner lost in the suit does not mean that he is not entitled to protect the interests of his mother, who, according to him, is having a feeble mind and that she is not having a disposing state of mind. The counsel also submitted that at no point of time the petitioner stated that his mother was of unsound mind. His only case was that she was only mentally infirm and she is a person of feeble mind having no disposing state of mind. The counsel contended that even if it is found that the plaintiff is not mentally infirm, the proper procedure would have been removal of the next friend under Rule 9 of Order XXXII of the Code of Civil Procedure and not to dismiss the suit. The counsel also submitted that the petitioner was not given an opportunity to cross examine the plaintiff. It is submitted that the affidavit in support of I.A.No.1175 of 2008 is in the handwriting of the counsel who appeared for defendants 1 and 2 and the affidavit was attested by a junior Advocate in the office of the counsel for defendants 1 and 2.

11. Learned counsel appearing for the respondents supported the order passed by the court below and contended that the Revision is not maintainable under Section 115 of the Code of Civil Procedure. It is submitted that no affidavit of a disinterested person was filed along with the plaint as provided under Rule 212 of the Civil Rules of Practice. The learned counsel appearing for the respondents also mentioned the details regarding the suit filed by the petitioner against his mother Bharathiyamma for specific performance of an alleged agreement for sale in respect of the same property involved in the present suit. The counsel submitted that the suit filed by Ramachandran Pillai against Bharathiyamma was dismissed by the trial court and the dismissal of the suit was confirmed in Appeal and in Second Appeal. All throughout that litigation, the petitioner had no case that his mother was a person of unsound mind or that she was mentally infirm or that she was a person having a feeble mind.

12. Order XXXII of the Code of Civil Procedure provides for suits by or against minors and persons of unsound mind. Rule 15 of Order XXXII of the Code of Civil Procedure states that "Rules 1 to 14 (except Rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued". Every suit by a minor or by a person who is of unsound mind or by a person who is incapable, by reason of any mental infirmity, of protecting his interest when suing, shall be filed by a next friend. Where a suit is instituted in such a case without a next friend, the defendant may apply to have the plaint taken off the file, as provided in Rule 2 of Order XXXII of the Code of Civil Procedure. Rule 4 of Order XXXII CPC provides as to who may act as the next friend or be appointed as the guardian in the suit. The proviso to sub rule (1) of Rule 4 mandates that the interest of the next friend or guardian is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant in the suit, or, in the case of a guardian, a plaintiff.

13. Sub-rule (1) of Rule 9 of Order XXXII CPC reads as follows:

"9. Removal of next friend.-- (1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within India, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit." 

Rule 9 provides for an application to be made on behalf of the plaintiff or by a defendant for the removal of the next friend. But, that does not mean only some other person on behalf of the plaintiff or the defendant can make a prayer for taking the suit off the file. The plaintiff himself may appear before Court and establish that he is not a minor or a person who comes under Rule 15 of Order XXXII CPC, and that he does not want to prosecute the suit. Order XXXII does not prevent such a course being adopted by the plaintiff who claims that he is not a person of unsound mind or feeble mind or mentally infirm person or a person who is not capable of protecting his own interest.

14. The learned counsel for the petitioner relied on the decision in Syed Hassan v. Chirutha (1987 (2) KLT 242), wherein it was held that it is a pre-requisite that the Court should of its own motion conduct an enquiry in accordance with the provisions of Rule 15 of Order XXXII of the Code of Civil Procedure before accepting the plaint filed in the name of an idiot by his next friend. The learned counsel submitted that in the present suit that stage is over and the plaint was taken on file. Thereafter, the Court cannot decide the question whether the next friend filed the suit following all the parameters of Order XXXII. I do not find anything in the decision in 1987 (2) KLT 242 to suggest that the Court does not have jurisdiction to make an enquiry under Rule 15 of Order XXXII CPC, after summons was issued to the defendant. A defendant may put forward a contention that the next friend is not entitled to institute the suit on behalf of the plaintiff, either because the plaintiff is not a person of unsound mind or feeble mind or a person who is not capable of protecting his interest or on the ground that the next friend is having interest adverse to that of the plaintiff. Such an enquiry is not barred after the issue of summons to the defendant. In fact, Rule 9 of Order XXXII CPC provides for removal of the next friend at the instance of a person on behalf of the plaintiff or by the defendant on the ground that the interest of the next friend is adverse to that of the plaintiff. When such an application is filed, an enquiry is to be made as provided in Rule 15 of Order XXXII CPC. I am not inclined to accept the contention raised by the learned counsel for the petitioner in this regard.

15. In Rasheeda v. Nazeer (2011(3) KLT 218), it was held thus:

"4. Every suit instituted by a minor or by a person adjudged, before or during the pendency of the suit, to be of unsound mind or by a person who, though not so adjudged, is found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued, shall be instituted by a next friend on behalf of the plaintiff. Every person has a right to institute a suit if he has a cause of action for the same. If such a person is a minor or a person of unsound mind, a next friend can institute the suit on his behalf. A decision rendered in such suit shall be binding on the plaintiff. If the plaintiff is not a person adjudged to be of unsound mind, R.15 of O.XXXII of the Code of Civil Procedure provides that the court shall make an enquiry to ascertain whether the plaintiff is incapable, by reason of any mental infirmity, of protecting his interests. Allowing a next friend to institute a suit on behalf of a person on the ground that such person is of unsound mind or a person having mental infirmity, really affects the status of the plaintiff if really he is a person capable of suing. Grant of such permission by the Court would certainly affect his civil rights. An inbuilt safeguard is made in R.15 of O.XXXII to make an enquiry for the purpose of satisfaction of the Court as to whether the plaintiff is incapable of filing the suit by himself or whether a next friend should be allowed to institute the suit on his behalf. If it is found that the plaintiff has no mental infirmity or any other infirmity warranting permission to be granted for the next friend to sue on his behalf, necessarily, no permission can be granted to institute the suit by the next friend. Only on finding that the plaintiff is incapable to institute the suit as provided under law, the Court would allow the next friend to institute and to prosecute the suit. Such an enquiry is mandatory." 

16. A Division Bench of this Court in Raveendran v. Sobhana (2008(1) KLT 488) held thus:

"10. The decision under O.32 R.15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. In the decision reported in S.C.Karayalar v. V.Karayalar (1968 MLJ 150), it was held that holding of an enquiry under O.32 R.15.... "is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend."" 

17. I am also not inclined to accept the contention raised by the learned counsel for the petitioner that without removal of the next friend, the Court has no jurisdiction to dispose of the suit accepting the plea of the plaintiff that she is not a person of unsound mind or a mentally infirm person. All that is required is that the Court should be satisfied that the plaintiff is either a minor or a person of unsound mind or a person who is not capable of protecting his interest and that it is required to allow the next friend to institute the suit on behalf of such person. If it is found by the Court that the interest of the next friend is adverse to that of the plaintiff and that the plaintiff does not want to continue to prosecute the suit, nothing prevents the Court from taking the suit off the file. It is not mandatory that the Court should first remove the next friend and then allow the prayer made by the plaintiff. It can be done simultaneously. I am also not inclined to accept the contention raised by the learned counsel for the petitioner that after removal of the next friend, it is mandatory that the suit should be continued by the plaintiff. If the Court finds that the plaintiff is not a person of unsound mind or having any other infirmity, it is for the plaintiff to decide whether he/she should continue to prosecute the suit or to withdraw the suit or to compromise the suit.

18. If the plaintiff, on whose behalf a next friend instituted the suit, appears before Court and proves to the satisfaction of the Court that he is not a person of unsound mind or a person having a feeble mind or that he is a person who is capable of protecting his own interest, the Court is bound to protect the interest of such plaintiff. When the law provides that the next friend should have no interest adverse to that of the plaintiff on whose behalf the next friend instituted the suit, it cannot be said that the next friend would have a right to cross examine the plaintiff. In an enquiry under Rule 15 of Order XXXII, the Court is not expected to decide the dispute between the plaintiff and the next friend. The enquiry is limited to the question whether the next friend should be allowed to institute the suit on behalf of the plaintiff on the ground that the plaintiff is not entitled to protect his interest or on the ground that the plaintiff is a minor.

19. Rule 212 of the Civil Rules of Practice, Kerala reads thus:

"212. Plaint or original petition on behalf of a minor.-- When a plaint or original petition is presented by a person as the next friend of a plaintiff or petitioner, who is a minor or under disability, he shall also file an affidavit by a disinterested person that the next friend has no interest, direct or indirect, in the subject matter of the suit or matter adverse to that of the plaintiff or petitioner, that he is not a defendant or respondent in the suit or matter, and that he is a fit and proper person to act as next friend." 

The stipulation that an affidavit of a disinterested person should be filed is only to protect the interest of the plaintiff and to ensure that the next friend has no interest, direct or indirect, in the subject matter of the suit. No such affidavit was filed in the present case. That itself is a sufficient ground to reject the contention put forward by the petitioner.

20. Even going by the averments in the plaint and on the admitted facts, the petitioner is a person having interest adverse to that of the plaintiff. He is not entitled to act as the next friend of the plaintiff. He cannot be allowed to continue to prosecute the suit on behalf of the plaintiff, to the detriment of her interest.

21. I do not find any ground to interfere with the order passed by the court below. There is no jurisdictional error or error of law warranting interference either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India. I do not think it is necessary to decide the question whether the Revision is maintainable, since I have considered the contentions on the merits. For the aforesaid reasons, the Civil Revision Petition is dismissed. 

(K.T.SANKARAN) Judge 

ahz/   

DR. T.LEELAMONY, SELECTION GRADE LECTURER IN SANSKRIT, S.N.COLLEGE, CHERTHALA, RESIDING AT CHEMPAKASSERY, JAWAHAR NAGAR, PATTATHANAM P.O., KOLLAM. 

BY ADVS.SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN 

1. MANAGER,S.N.TRUST, S.N.TRUST BUILDING, KOLLAM. 

2. THE KERALA UNIVERSITY, REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDING, PALAYAM, THIRUVANANTHAPURAM. 

*ADDL.R3 IMPLEADED 

*R3: THE STATE OF KERALA , REPRESENTED BY THS SECRETARY TO THE GOVT. OF KERALA, DEPARTMENT OF HIGHER EDUCATION. 

*ADDL.R3 IS IMPLEADED AS ORDER DATED 17/8/2011 IN CRP.NO.364/2011 

R1 BY ADV. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) R2 BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. ADDL.R3 BY GOVERNMENT PLEADER SRI.JAMES MATHEW KADAVAN 

Kerala Universities Act, 1974 - Section 60(2) - Suspension - Disciplinary Proceedings - No teacher can be placed under suspension except in connection with a disciplinary proceedings, that too, only when disciplinary proceedings are initiated.  

Held:- In the case in hand, the teacher was not placed under suspension. Hence, we do not find any ground to interfere with the impugned order upholding the initiation of disciplinary proceedings, the enquiry and its completion. However, on the totality of the facts and circumstances, we think that the punishment is excessive. The teacher, a lady, was essentially reacting against some incident in connection with her husband who was also a teacher. On facts, we see that there were some issues between the management, the teacher and her husband who has now demitted office after serving as a Principal. In the fitness of things, the cumulative effect given to the barring of increments was situationally unnecessary. Ends of justice require that the same is trimmed down and modified to be one of barring of two increments without cumulative effect, thereby taking away the cumulative effect imposed on the sufferance of the barring of increments. This modification to the punishment shall be appropriately given effect to in calculating the drawals as may be due to the teacher in accordance with law. 

"60. Conditions of service of teachers of private colleges: (1)Notwithstanding anything contained in any law or in any contract or other document, the conditions of service of private colleges, whether appointed before or after the commencement of this act, including conditions relating to pay, pension, provident fund, gratuity, insurance and age of retirement, shall be such as may be prescribed by the Statutes. 

(2)No teacher of a private college shall be kept under suspension by the educational agency except when disciplinary proceedings are initiated against him. 

(3)When a teacher of a private college is suspended fro a period exceeding fifteen days, the matter, together with the reason for the suspension, shall be reported to the Vice-Chancellor. 

(4)Any disciplinary proceedings initiated under sub-section (2) shall be completed within a period of three months or within such further period as may be allowed by the Vice-Chancellor after hearing the parties concerned. 

(5)Any person aggrieved by an order of the Vice- Chancellor under sub-section (4) may, within a period of thirty days from the date of receipt of the order by him, appeal to the Appellate Tribunal. 

(6)No disciplinary action shall be taken against a teacher without giving him a reasonable opportunity of showing cause against the action proposed to be taken against him". 

(2012) 255 KLR 555

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH 

MONDAY, THE 11TH DAY OF JUNE 2012/21ST JYAISHTA 1934 

CRP.No. 65 of 2012 () 

--------------------- 

OS.58/2010 of MUNSIFF COURT, TIRUR 

REVISION PETITIONER/DEFENDANT: 

------------------------------ 

SIJU PAUL, S/O.POULOSE, THANIVEETTIL HOUSE, NORTH MAZHAVANNUR, IRAPURAM P.O., PIN-686689, ERNAKULAM DISTRICT. 

BY ADVS.SRI.T. KRISHNAN UNNI (SR.) SRI. JAMSHEED HAFIZ 

RESPONDENT/PLAINTIFF: 

--------------------- 

T.V.SUBASH, S/O.BALAN, THAZHE URIKKOTH HOUSE, MANIYUR P.O. PIN-673101, VADAKARA, KOZHIKODE DISTRICT. 

BY ADV. SRI.N.M.MADHU BY ADV. SMT.C.S.RAJANI 

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- 

V.CHITAMBARESH, J. 

.................................... 

C.R.P.NO.65/2012 

.................................. 

Dated this the 11th Day of June 2012 

Head Note:-

Kerala Court Fees and Suits Valuation Act, 1959 - Sections 25 and 27(c) - Suit is for mandatory injunction - Return the cheques issued as security - Not for declaration - Valuation of the plaint under S. 27(c) is proper. 

Held:- The plaintiff has a contention that he has already paid Rs.1,05,000/- due to the defendant and that the sum of Rs.2,40,000/- shown in both the cheques together is not the correct amount. These are all incidental questions to be considered by the court below in the matter of granting the relief of mandatory injunction sought for. But the plaintiff has not sought for any declaration to that effect and therefore there is no necessity to pay the court fee under Section 25 of the Kerala Court Fees and Suits Valuation Act, 1959.

O R D E R 

The suit as framed is one for mandatory injunction, directing the defendant to return the cheques allegedly issued by the plaintiff as security. The suit is not one for a declaration that the plaintiff has already paid the amount due to the defendant covered by the cheques in question. Therefore the finding of the court below that the valuation of the plaint under Section 27(c) of the Kerala Court Fees and Suits Valuation Act, 1959 is proper cannot be faulted with. 

2. The plaintiff has a contention that he has already paid Rs.1,05,000/- due to the defendant and that the sum of Rs.2,40,000/- shown in both the cheques together is not the correct amount. These are all incidental questions to be considered by the court below in the matter of granting the relief of mandatory injunction sought for. But the plaintiff has not sought for any declaration to that effect and therefore there is no necessity to pay the court fee under Section 25 of the Kerala Court Fees and Suits Valuation Act, 1959. I am fortified in this view by the judgment in Vishnu Pratap Sugar Works (P) Ltd Vs. Chief Inspector of Stamps, U.P (A.I.R 968 SC 102) and in Sathyavrathan Vs. The Manager, Indian Overseas Bank (1988 (1) KLT 553). The Civil Revision Petition fails and is dismissed. 

V.CHITAMBARESH JUDGE 

RKM 

(2012) 259 KLR 098 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH 

MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934 

CRP.No. 484 of 2011 ( ) 

----------------------- 

E.P. NO. 173/2008 IN OS.312/1984 OF MUNSIFF COURT, NEYYATTINKARA RC.2/2009 of LAND TRIBUNAL, TRIVANDRUM 

REVISION PETITIONER(S)/REVN. PETITIONER/4TH JUDGMENT DEBTOR/4TH: 

--------------------------------------------------------------- 

AMMUKKUTTY AMMA KRISHNAKUMARI, MAYILOTTU KIZHAKKUKARA PUTHEN VEEDU MARANALLOOR DESOM, NEYYATTINKARA. 

BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES 

RESPONDENT(S)/DECREE HOLDER/PLAINTIFF.: 

--------------------------------------- 

RAJASEKHARAN NAIR, S/O.GOPALAN NAIR, MAYILOTTU MEKKUMKARA THEKKE PUTHEN VEEDU MARANALLOOR DESOM, MARANALLOOR P.O. THIRUVANANTHAPURAM-695 121. 

BY ADV. SRI.S.VINOD BHAT BY ADV. SRI.S.VINOD BHAT BY ADV. SRI.LEGITH T.KOTTAKKAL BY ADV. SRI.R.D.SHENOY (SR.) 

THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 

"C.R." 

V. CHITAMBARESH, J 

-------------------------------- 

C.R.P.NO. 484 OF 2011 

------------------------------------ 

Dated this the 25th day of June, 2012 

Head Note:-

Kerala Land Reforms Act, 1963 - Section 2(25) Explanation IV - 'kudikidappukaran' - Redemption of a mortgage - Whether an assignee mortgagee not alive on the date of redemption of the mortgage can claim the benefit of 'kudikidappukaran'?

Held: - The question whether an assignee mortgagee can claim the benefit of Explanation IV to Section 2 (25) of the Act is no longer res integra. A Division Bench of this court in Narayani Vs. Neelakantan [1990 (2) 154] has held that the assignee mortgagee is also entitled to the benefit. This is subject to the condition that the assignee mortgagee satisfies other conditions to qualify for being a 'kudikidappukaran'. But then the assignee mortgagee was not alive on the date of redemption of the mortgage. The assignee mortgagee had died in the year 1970 whereas the mortgage money was deposited by the mortgagor only on 05.04.2008. It is only when the mortgagor- mortgagee tie is snapped can the claim of 'kudikidappukaran' spring up, if at all any. The assignee mortgagee was not alive to enable him to establish that he qualified for the status of 'kudikidappukaran'. Explanation IV to Section 2 (25) of the Act is categoric that the mortgagee should satisfy the qualification 'at the time of the redemption'. The irresistible conclusion therefore is that all the legal heirs of the assignee mortgagee should together satisfy the test of 'kudikidappukaran' in the instant case.  One of the legal representatives of the 'kudikidappukaran' can alone maintain the claim for and on behalf of the others also. A Full Bench of this court in Moothorakutty Vs. Chiruthakutty [1995 (1) KLT 251] has considered this aspect in detail. It was held therein that possession of other land by any or all of the legal representatives may not disqualify them. But the said decision is distinguishable in as much as the same dealt with an inheritance of a crystallized right of 'kudikidappukaran'. The alleged right of  'kudikidappukaran' in the instant case crystallized much after his death. The legal heirs who stepped in to the shoes of the 'kudikidappukaran' should together satisfy the tests on the date of redemption of mortgage. The tests are: (i) They should not together own any residential building or land exceeding the limit prescribed in the Act; (ii) Their annual income put together should be within the limit prescribed in the Act.   

Kerala Compensation for Tenants Improvements Act, 1959 - Plea of 'kudikidappukaran' - Assessment of improvements - Held, the valuable right of 'kudikidappukaran' would not disappear on assessment of improvements. The assessment of improvements was for the purpose of ascertaining the mortgage money. There could be a redemption of mortgage only after the mortgage money was so ascertained and deposited.  

O R D E R 

This is a piquant situation where the legal heirs claim that their predecessor-in-interest would be a 'kudikidappukaran' had been alive on the date on which the right got crystallized in law. It was a delight to hear Mr. G.S. Raghunath, Advocate on behalf of the revision petitioner and Mr. R.D. Shenoy, Senior Advocate on behalf of the respondent on this stimulating question. 

2. The suit in O.S. No. 312/1984 on the file of the court of the Munsiff of Neyyattinkara is one for redemption of a mortgage dated 11.07.1122 M.E. The plaint 'A' schedule property is 15 cents of land and the plaint 'B' schedule property is a thatched house therein. The property belonged to one Krishnan Nair who mortgaged the same in favour of Padmanabha Pillai and Lakshmi Amma under Ext.A3 deed. The mortgagees assigned their right in favour of Velayudhan Pillai and Rajamma in the year 1950. Velayudhan Pillai released his one half mortgage right in favour of Rajamma in the year 1954. Rajamma in turn assigned the whole mortgage right in favour of Raghavan Pillai in the year 1955 under Ext.A4 deed and the petitioner is his daughter. Raghavan Pillai sub- mortgaged the property in favour of Ramakrishnan Nair who assigned his sub-mortgage right to Krishnan Nair. Krishnan Nair released his sub-mortgage right to the petitioner in the year 1979 under Ext.A5 deed. The petitioner is the fourth defendant in the suit filed by the respondent for redemption of the mortgage aforestated. 

3. The suit was originally dismissed by the trial court whereby the claim for redemption by the plaintiff and the plea of 'kudikidappu' by the defendants were negatived. The appeal therefrom in A.S. No. 780/1984 on the file of the court of the Subordinate Judge of Neyyattinkara was allowed. But the appellate court remanded the suit without disturbing the finding against the defendants on 'kudikidappu'. The order of remand was challenged by the fourth defendant in CMA No. 50/2000 on the file of this court. The order of remand was modified whereby the question of 'kudikidappu' was left open to be considered at the time of redemption of mortgage. The plaintiff had in the meanwhile taken assignment of the 'jenm' right from the erstwhile landlord in regard to the property. The suit was eventually decreed and the question of 'kudikidappu' referred to the land tribunal under Section 125 (3) of the Kerala Land Reforms Act, 1963 ('the Act' for short). The reference to the land tribunal was made at the execution stage since the claim of 'kudikidappu' in the instant case arose at the stage of redemption of mortgage only. The land tribunal by order dated 27.07.2000 did not uphold the claim of 'kudikidapu' put in by the fourth defendant. But the order was set aside in CRP No. 519/2010 by this court as sufficient opportunity had not been afforded by the land tribunal. The land tribunal again negatived the plea of 'kudikidappu' and forwarded the finding to the execution court. The execution court accepted the finding and directed delivery of the property which is impugned in this Civil Revision Petition.

4. The plea of 'kudikidappu' hinged on Explanation IV to Section 2(25) of the Act and the relevant portion thereof is as follows: 

"2. Definitions:- In this Act, unless the context otherwise requires,- 

xxxxxxxxxxxxx xxxxxxxxxxxxx 

(25) 'Kudikidappukaran' means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and- 

(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or 

(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and 'kudikidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto: 

Explanation I- xxxxxxxxx xxxxxxxxxxxxx 

Explanation IV- Where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead or hut, provided that at the time of the redemption- 

(a) he has no other kudikidappu or residential building belonging to him or any land exceeding three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead; and 

(b) his annual income does not exceed two thousand rupees". 

(emphasis supplied). 

5. The question whether an assignee mortgagee can claim the benefit of Explanation IV to Section 2 (25) of the Act is no longer res integra. A Division Bench of this court in Narayani Vs. Neelakantan [1990 (2) 154] has held that the assignee mortgagee is also entitled to the benefit. This is subject to the condition that the assignee mortgagee satisfies other conditions to qualify for being a 'kudikidappukaran'. But then the assignee mortgagee was not alive on the date of redemption of the mortgage. The assignee mortgagee had died in the year 1970 whereas the mortgage money was deposited by the mortgagor only on 05.04.2008. It is only when the mortgagor- mortgagee tie is snapped can the claim of 'kudikidappukaran' spring up, if at all any. The assignee mortgagee was not alive to enable him to establish that he qualified for the status of 'kudikidappukaran'. Explanation IV to Section 2 (25) of the Act is categoric that the mortgagee should satisfy the qualification 'at the time of the redemption'. The irresistible conclusion therefore is that all the legal heirs of the assignee mortgagee should together satisfy the test of 'kudikidappukaran' in the instant case. 

6. It is no doubt true that one of the legal representatives of the 'kudikidappukaran' can alone maintain the claim for and on behalf of the others also. A Full Bench of this court in Moothorakutty Vs. Chiruthakutty [1995 (1) KLT 251] has considered this aspect in detail. It was held therein that possession of other land by any or all of the legal representatives may not disqualify them. But the said decision is distinguishable in as much as the same dealt with an inheritance of a crystallized right of 'kudikidappukaran'. The alleged right of  'kudikidappukaran' in the instant case crystallized much after his death. The legal heirs who stepped in to the shoes of the 'kudikidappukaran' should together satisfy the tests on the date of redemption of mortgage. The tests are: 

(i) They should not together own any residential building or land exceeding the limit prescribed in the Act; 

(ii) Their annual income put together should be within the limit prescribed in the Act. 

7. Ext.A4 deed in favour of the assignee mortgagee is silent as regards the existence of any building in the property. But Ext.A5 deed under which the fourth defendant got release of the sub-mortgage right speaks of the construction of a building. The recitals in Ext.A5 deed prima facie indicate that the assignee mortgagee had erected a homestead while in possession. A 'homestead' is quite different from a 'hut' as is evident by Explanation II to Section 2 (25) of the Act. There is no stipulation that the cost of construction for a homestead should not exceed Rs.750/- unlike in the case of a hut. Moreover a mortgagee need have possession only and not be in physical occupation of the homestead as per Explanation IV to Section 2 (25) of the Act. This subtle distinction as well as the recitals in Exts.A4 and A5 deeds have been overlooked by the authorised officer deputed by the land tribunal. 

8. The plaintiff contended that the fourth defendant should have occupied the homestead in her own right to be styled as a 'kudikidappukaran'. It was contended that a mere occupation by virtue of a right vested in another would not enable her to be clothed with the right. Reference in this connection was made to the following decisions: 

(i) Perila Janardhanan Vs. Vellachi Chinna [1972 KLT 207]. 

(ii) Balammal Vs. Vasantha Kumari and others [1984 KLJ 60] 

Those decisions exhibited a situation where the relatives or the legal heirs were not in possession on their own right which is not so in the case on hand. The fourth defendant was in occupation of the homestead in her own right as the title of assignee mortgagee had by then devolved on her.

9. The plaintiff also vehemently contended that the fourth defendant is estopped from putting forth the plea of 'kudikidappukaran'. This is because the fourth defendant had filed an affidavit dated 06.12.1998 to have the value of improvements assessed. The plaintiff asserted that the fourth defendant is at best entitled to the value of improvements under the Kerala Compensation for Tenants Improvements Act, 1959. It should be noted that the assessment of improvements was for the purpose of ascertaining the mortgage money. There could be a redemption of mortgage only after the mortgage money was so ascertained and deposited. I am not prepared to accede to the contention that the valuable right of 'kudikidappukaran' would disappear on assessment of improvements. 

10. All the legal heirs of the assignee mortgagee though are parties to the suit have not been impleaded in the execution petition filed for delivery. The plaintiff resorted to this course presumably because only the fourth defendant is now in occupation of the homestead. All the legal heirs of the assignee mortgagee are also necessary parties to the execution petition. Only then will all the legal heirs get an opportunity to substantiate their claim before the land tribunal on the reference by the execution court. I also find that the fourth defendant was not permitted to examine the authorised officer though sought for in the land tribunal. The entitlement of 'kudikidappu' to all the legal heirs together on the date of redemption of mortgage deserves to be considered afresh. 

11. I set aside the impugned order and remit the matter to the execution court for fresh consideration in the light of the observations supra. The parties will appear before the execution court on 01.08.2012 for further enquiry. The Registry shall send down the records forthwith. The Civil Revision Petition is allowed. No costs. 

V. CHITAMBARESH JUDGE 

ncd 

 (2012) 255 KLR 560

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN 

FRIDAY, THE 25TH DAY OF MARCH 2011/4TH CHAITHRA 1933 

CRP.No. 1222 of 2003 (C) 

E.P.NO.91/2000 IN OS.148/1979 OF MUNSIFF'S COURT, KOTTARAKKARA 

REVISION PETITIONERS:DECREE HOLDERS: 

PLAINTIFFS: 

1. NEELA CHINNA, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM MURI, KADAKKAL VILLAGE. (DIED- HER LEGAL REPRESENTATIVES ARE ADDITIONAL PETITIONERS 2 TO 6) 

ADDL.2. CHINNA KURUMBA, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM MURI, KADAKKAL VILLAGE. 

ADDL.3. EACHARAN GOPI,RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM MURI, KADAKKAL VILLAGE. 

ADDL.4. SANTHA, D/O.EACHARAN,RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM MURI, KADAKKAL VILLAGE. 

ADDL.5. EACHARAN RAVEENDRAN, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM MURI, KADAKKAL VILLAGE. 

ADDL.6. EACHARAN SOMAN, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM MURI, KADAKKAL VILLAGE. 

ADDL.PETITIONERS 3 TO 5 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED ADDITIONAL PETITIONER NO.2 AS PER ORDER DT. 04/02/2008 IN I.A.NO.119 OF 2008. 

BY ADV. SRI.T.K.KURIKESU SRI.THOMAS KURIKESU 

RESPONDENTS: 

JUDGMENT DEBTORS: 

DEFENDANTS: 

1. GANGADHARAN PILLAI, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. (DIED- HIS LEGAL REPRESENTATIVES ARE ADDL.RESPONDENTS 2 TO 9) 

ADDL.2. LAKSHMI AMMA, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

ADDL.3. SATHYAN PILLAI, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

ADDL.4. LEKSHMI AMMA LALITHAMMA,RESIDING AT VAYALIRAKKATHU PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE. 

ADDL.5. VIJAYAMMA, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

ADDL.6. C.GOPINATHAN PILLAI,RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

ADDL.7. G.RAVEENDRAN PILLAI, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

ADDL.8. RADHAMANI, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

ADDL.9. USHA, RESIDING AT PALONATHU THEKKUMKARA PUTHUVALVILA VEEDU, ATTUPURAM WARD, KADAKKAL VILLAGE. 

R2 TO R5 & R7 TO R9 BY ADV. SRI.K.SUBASH CHANDRA BOSE 

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-03-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 

K.T.SANKARAN, J. 

------------------------------------------------------ 

C.R.P. NO. 1222 OF 2003 C 

------------------------------------------------------ 

Dated this the 25th day of March, 2011 

Head Note:-

Limitation Act, 1963 - Article 136 - So long as there was no merger of the trial court decree in the order passed by the appellate court dismissing the appeal for default, the period of limitation for the Execution Petition has to be computed from the date of the decree of the Trail Court.

O R D E R 

The petitioners are the decree holders in O.S.No.148 of 1979, on the file of the Munsiff's Court, Kottarakkara. The Execution Petition filed by them as E.P.No.91 of 2000 was dismissed on the ground of limitation, which is under challenge in this Revision. 

2. The decree was passed on 20.12.1986. The defendants filed appeal. The appeal was dismissed for default on 6.3.1996. The decree holders filed an Execution Petition on 31.3.1999, which was dismissed for default on 26.5.2000. Later, the present Execution Petition, namely, E.P.No.91 of 2000 was filed on 21.8.2000. The Execution Petition was dismissed by the order dated 21.10.2002 on the ground that it is barred by limitation. On 18.11.2002, the decree holders filed a Review Petition as E.A.No.217 of 2002. That Review Petition was dismissed on 4.11.2003. Meanwhile, the order dated 21.10.2002 was challenged in Revision on 30.5.2003.

3. Sri.T.K.Kurikesu, learned counsel appearing for the decree holders submitted that the period of limitation for the Execution Petition is to be computed from 6.3.1996, the date on which the appeal was dismissed for default. He submitted that under Article 136 of the Limitation Act the period begins to run when the decree becomes enforceable. He stated that even if the dismissal of the appeal was for default, it is nevertheless a decision in the appeal and, therefore, time has to be computed from that date. Sri.Kurikesu relied on the decisions in Kamalamma v. Trivandrum Permanent Bank (1986 KLT 1181), Shyam Sundar Sarma v. Pannalal Jaiswal (2005(1) KLT 198(SC)), Meenakshi Amma v. Rama Kurup (1973 KLT 489), Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) and Palichavla Venkataramana Reddy v. Chittamuru Subbarami Reddy and another (1969(1) Andhra Law Times Reports 332). 

4. Sri.K.Subhash Chandra Bose, learned counsel appearing for the respondents/judgment debtors, contended that since the appeal was dismissed for default, there could be no merger of the decree in the order dismissing the appeal for default. The order dismissing the appeal for default would not be a decree within the meaning of Section 2(2) of the Code of Civil Procedure. If there is no merger, unless the execution of the decree is stayed or otherwise the decree holder is prevented from executing the decree, time will begin to run from the date of the decree. Admittedly, the Execution Petition was filed beyond the period of twelve years from the date of the decree of the trial court. Sri. K.Subhash Chandra Bose relied on the decisions in Ratansingh v. Vijaysingh (2001 (1) KLT 327 (SC) = (2001) 1 SCC 469), Chandi Prasad and others v. Jagdish Prasad and others ((2004) 8 SCC 724) and in Manohar v. Jaipalsing (2008(1) KLT 832 (SC)). The counsel also submitted that even the Execution Petition filed by the decree holders earlier on 31.3.1999 was barred by limitation and that Execution Petition was filed much after the dismissal of the appeal. The learned counsel also pointed out that at the time when the Revision was filed, the order impugned in the Revision was sought to be reviewed on the application of the revision petitioners and that Review Petition was subsequently dismissed on 4.11.2003. It is submitted that the Revision itself is not therefore maintainable.

5. In Ratansingh v. Vijaysingh (2001 (1) KLT 327 (SC) = (2001) 1 SCC 469), the trial court passed the decree on 14.12.1970 and the appeal filed by the defendant was dismissed on 1.8.1973. The Execution Petition was filed on 24.3.1988, which was beyond the period of twelve years from the date of the appellate court decree. It was contended that the Second Appeal filed by the defendant was dismissed by the High Court on 31.3.1976 as it was time barred and the period of twelve years had to be computed from that date. Negativing the contention of the decree holder, the Supreme Court held: 

"8. When does a decree become enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression "enforceable" has been used to cover such decrees or orders also which become enforceable subsequently. 

9. Filing of an appeal would not affect the enforceability of the decree, unless the Appellate Court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the Appellate Court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no suspension and hence the lower court decree continues to be enforceable. 

10. xxxx xxxx xxxx 

11. In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench of the Calcutta High Court (S.P.Mitra, C.J., Sabyasachi Mukherjee, J.(as he then was) and S.K.Datta, J.) has held in Mamuda Khatoon & Ors. v. Beniyan Bibi & Ors. (AIR 1976 Calcutta 415) that "if the application under S.5 of the Limitation Act was rejected the resultant order cannot be a decree and the order rejecting the memorandum of appeal is merely an incidental order". The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under S.5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law. 

12. In such a situation the mere fact that the Second Appeal was dismissed as a corollary to the dismissal of application for condonation of delay has no effect on the decree passed by the First Appellate Court." 

6. In Chandi Prasad and others v. Jagdish Prasad and others ((2004) 8 SCC 724), the matter was considered by a three Judge Bench on a reference doubting the correctness of the the decision in Ratansingh v. Vijaysingh (2001 (1) KLT 327 (SC) = (2001) 1 SCC 469). In Chandi Prasad's case, a final decree for partition was passed on 7.5.1968. The appeal against the decree was dismissed. In the Second Appeal, the case was remanded to the appellate court. The First Appellate Court again dismissed the appeal on 4.1.1974. The Second Appeal therefrom was dismissed by the High Court on 18.4.1985. Execution Petition was filed on 26.3.1997. It was contended that the Execution Petition was barred by limitation. Though the executing court held that it was barred by limitation, that order was reversed by the appellate court and confirmed by the High Court. It was contended before the Supreme Court that a second appeal against an appellate decree being entertainable only on limited ground, namely, on a substantial question of law, doctrine of merger will have no application and, therefore, the period of limitation would commence from the date of the first appellate decree and not from the date of disposal of the second appeal. The Supreme Court repelled this contention and held: 

"21. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in the presence of both parties, the same would replace the judgment of the lower court and only the judgment of the High Court would be treated as final. (See U.J.S.Chopra v. State of Bombay.) 

22. When an appeal is prescribed under a statute and the appellate fourm is invoked and entertained, for all intent and purport, the suit continues. 

23. The doctrine of merger is based on the principles of propriety in the hierarchy of the justice- delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time. 

24. It is trite that when an appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverses the decree passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. (See V.M.Salgaocar and Bros.(P) Ltd. v. CIT.)" 

The Supreme Court also referred to the decision in Kunhayammed v. State of Kerala ((2000) 6 SCC 359). The Supreme Court in Chandi Prasad's case held that the decision in Ratansingh's case had no application to the facts of that case. 

7. In Manohar and others v. Jaipalsing and others ((2008) 1 SCC 520 = 2008(1) KLT 832 (SC)), the suit was dismissed by the trial court and the First Appellate Court. The Second Appeal filed by the plaintiff was allowed and the suit was decreed. The defendants filed a Review Petition to review the judgment in the Second Appeal. The Review Petition was dismissed. The Civil Appeal filed against that order before the Supreme Court was also dismissed. In the Execution Petition, the judgment debtor raised a contention that it was barred by limitation. It was contended that the judgment in the Second Appeal merged in the order dismissing the Review Petition and time would begin to run from that date. The Supreme Court rejected this contention and held:

"13. It is also incorrect to contend that in a case of this nature, namely, where a review petition was dismissed, the doctrine of merger will have any application whatsoever. 

14. It is one thing to say that the respondent was entitled to file an application for review in terms of S.114 read with O.47 R.1 of the Code of Civil Procedure, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree." 

8. In Kamalamma v. Trivandrum Permanent Bank (1986 KLT 1181), it was held that where a decree of the trial court is taken up in appeal and the appellate court disposes the appeal confirming the decree, the decree to be executed is only the decree of the appellate court and not of the trial court. 

9. In M/s.Gojer Brothers (P) Ltd. v. Shri Ratan Lal Singh (AIR 1974 SC 1380), the Supreme Court held:

"10. The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore the judgment of an inferior Court, if subjected to an examination by the superior Court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior Court loses its identity by its merger with the judgment of the superior Court." 

10. The learned counsel for the petitioners relied on the decision of the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal ((2005) 1 SCC 436 = 2005(1) KLT 198(SC)) to support his contention that even if the appeal was dismissed for default, computation of the period of limitation for the purpose of Execution Petition would start from the date of dismissal of the appeal for default. On a careful reading of the decision of the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal, I am not in a position to agree with the contention put forward by the learned counsel for the petitioners. In Shyam Sundar Sarma's case, an exparte decree was passed in a title suit on 11.10.1996. On 16.11.1996, the first defendant filed an application under Rule 13 of Order IX of the Code of Civil Procedure accompanied by an application under Section 5 of the Limitation Act, for setting aside the exparte decree and to condone the delay in filing the application. On 21.11.1996, the first defendant filed an appeal against the exparte decree along with an application for condoning the delay in filing the appeal. On 17.9.1998, the trial court allowed the application for condoning the delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure. Though the plaintiff challenged that order in Revision, it was dismissed. On 21.1.2000, the application for condoning the delay in filing the appeal against the decree was dismissed for default and later on 6.3.2000, the appeal itself was dismissed for default. Later, the application under Order IX Rule 13 of the Code of Civil Procedure came up for hearing. The plaintiff contended that in view of the Explanation to Order IX Rule 13 of the Code of Civil Procedure, the application was not maintainable as the first defendant had filed an appeal against the decree. The first defendant contended that since the appeal against the decree was dismissed for default, as a consequence of the application for condoning the delay in filing the appeal having been dismissed for default, the Explanation to order IX Rule 13 of the Code of Civil Procedure would not apply. In that context, the Supreme Court held that dismissal of an appeal consequent on the refusal to condone the delay is nevertheless a decision in the appeal and, therefore, the application under Order IX Rule 13 of the Code of Civil Procedure would not be maintainable in view of the Explanation thereof. It was also held that a dismissal of the appeal for default cannot be equated with withdrawal of an appeal within the meaning of the Explanation to Rule 13 of Order IX of the Code of Civil Procedure. The decision in Shyam Sundar Sarma's case would not apply in the matter of computation of the period of limitation under Article 136 of the Limitation Act. The Supreme Court in Shyam Sundar Sarma's case, after referring to the decision in Ratansingh v. Vijaysingh (2001 (1) KLT 327 (SC) = (2001) 1 SCC 469), held that the dictum laid down therein was in the context of Article 136 of the Limitation Act. The decisions in Meenakshi Amma v. Rama Kurup (1973 KLT 489), Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) and Palichavla Venkataramana Reddy v. Chittamuru Subbarami Reddy and another (1969(1) Andhra Law Times Reports 332), relied on by the learned counsel for the petitioners, are not applicable to the facts of the present case. 

11. The Execution Petition was filed beyond the period of twelve years from the date of the decree. The appeal filed by the defendants was dismissed for default on 6.3.1996, i.e., before the expiry of twelve years from the date of decree of the trial court. Even the first Execution Petition filed by the decree holders on 31.3.1999 was beyond the period of twelve years from the date of the decree of the trial court (20.12.1986). That Execution Petition was dismissed for default on 26.5.2000. The present Execution Petition was filed on 21.8.2000. 

12. It is well settled that the decree of the trial court will merge in the decree of the appellate court when the appeal is decided on the merits and the period of limitation for execution can be computed from the date of the appellate decree. If the appellate court passes an order of stay of execution of the decree, necessarily Section 15 of the Limitation Act would apply and the period during which the stay was in force should be excluded from the period of limitation provided under Article 136 of the Limitation Act. In the present case, there was no stay of execution. Had the appellate court dismissed the appeal on the merits, time would have begun to run from the date of the appellate decree, for computing the period of limitation for filing the Execution Petition. A decree holder can legitimately take note of the principle of merger and desist from filing an Execution Petition during the pendency of the appeal from the decree, though there is no bar for him to file an Execution Petition during the pendency of the appeal. If the appeal is disposed of on the merits after the expiry of the period of twelve years from the date of the trial court decree, still an Execution Petition can be filed within twelve years from the date of the appellate court decree, since there would be merger of the trial court decree in the appellate decree. But the decree holder would run a risk if a tactful appellant gets his appeal dismissed for default after the expiry of twelve years from the date of the trial court decree. In such cases, since the principle of merger does not apply, the Execution Petition filed beyond the period of twelve years from the date of the trial court decree would be barred by limitation. The belief of the decree holder that the Appeal filed by the defendant would be decided on the merits and thus he would get further time to file Execution Petition, has no relevance in computing the period of limitation for filing an Execution Petition. The question to be considered is whether the Execution Petition is within time. If it is not within time, the belief entertained by the decree holder that the appeal would be decided on the merits, in which case he would get a further period of twelve years from the date of the appellate decree is not relevant at all. So long as there was no merger of the trial court decree in the order passed by the appellate court dismissing the appeal for default, the contention raised by the decree holders that the Execution Petition was filed within time cannot be accepted. 

For the aforesaid reasons, I concur with the findings of the executing court that the Execution Petition is barred by limitation. The Civil Revision Petition is, accordingly, dismissed. 

(K.T.SANKARAN) Judge ahz/

(2012) 248 KLR 999

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN 

FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933 

CRP.No. 546 of 2006 B 

AGAINST THE ORDER DATED 7.4.2006 IN E.A.NO.163 OF 2002 IN E.P.NO.249 OF 1990 IN OS.NO.551/1987 OF PRINCIPAL SUB COURT, KOTTAYAM REVISION 

PETITIONER/PETITIONER/JUDGMENT DEBTOR: 

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A.J.GEORGE, ANANTHAKULAM HOUSE, KONGANDOOR P.O. AYARKUNNAM VILLAGE, KOTTAYAM. 

BY ADVS.SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA KURIAKOSE SMT.PRASEETHA K. 

RESPONDENT/COUNTER PETITIONER/DECREE HOLDER: 

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STATE BANK OF TRAVANCORE, REPRESENTED BY ITS MANAGER, THIRUVANCHOOR BRANCH, THIRUVANCHOOR KOTTAYAM. BY ADV. SRI.SANTHOSH MATHEW BY ADV. SRI.SATHISH NINAN 

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 

I.A.NO.2066/2006 IN C.R.P.NO.546/2006 DISMISSED 9/3/2012 

SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ 

K.T.SANKARAN, J. 

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C.R.P. NO. 546 OF 2006 B

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Dated this the 9th day of March, 2012 

Head Note:-

Code of Civil Procedure, 1908 - Order XXI - Section 47 - When a decree is passed, the amount payable to the decree holder would be governed by the decree and not by the ledger folio in respect of the loan account kept by the bank. The account kept by the bank after filing the suit and the entries made therein are intended only for the internal accounting purpose of the bank.   

Code of Civil Procedure, 1908 -  Order XXI Rules 1 and 2 -In the matter of execution of the decree, the parties are governed by the decree and not by the account maintained by the decree holder whether it is a bank or a private individual. What is the amount due under the decree is to be computed with reference to the decree and the payments, if any, made thereafter. The ledger account maintained by the bank for the period after the decree is not relevant at all for computing the actual amount due as per the terms of the decree. The judgment debtor was not entitled to rely on the entries in the ledger folio kept by the bank.

Code of Civil Procedure, 1908 - Order XVIII Rule 3A - Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.  

Practice and Procedure - Witness - 

Practice of citing the opposite party as a witness - It is not a healthy trend to examine the same person as a witness for the petitioner and as a witness for the respondent. The petitioner cannot say that he cited the respondent as a witness for the petitioner since he apprehended that the respondent would not examine himself. Even if the respondent does not adduce any evidence, that does not enable the petitioner to cite the respondent as a witness in normal circumstances. In such circumstances, the petitioner can only say that an adverse inference should be drawn against the respondent to the extent possible.  

Practice and Procedure -  Decree and Judgment - If there is ambiguity in the decree, for the purpose of construing the terms of the decree, the judgment also can be looked into. 

O R D E R 

The judgment debtor in O.S.NO.551 of 1987 on the file of the Court of the Principal Subordinate Judge, Kottayam is the revision petitioner. He challenges the order dated 7.4.2006 in E.A.No.163 of 2002 in E.P.No.249 of 1990, by which the prayer to refund a sum of Rs. 78,431/- as alleged excess payment, was dismissed by the court below. 

2. The suit was decreed on 17.8.1989 for realization of a sum of Rs. 78,738.90 with interest at 16.5%. E.P.No.249 of 1990 was filed by the decree holder bank for realization of a sum of Rs. 1,24,813.07. On 29.11.1999, the decree holder filed a statement showing the balance amount as Rs. 78,431/-. On that basis, the judgment debtor paid that amount on 7.12.1999. On 14.12.1999, the Execution Petition was closed after recording full satisfaction of the decree. The case of the judgment debtor is that even after payment of Rs. 78,431/-, the original title deeds were not returned by the decree holder bank. 

3. On 20.1.2000, the decree holder filed E.A.No.45 of 2000 to review the order recording full satisfaction of the decree. In that application, the decree holder stated that interest was not calculated for the period from 12.9.1997 to 14.12.1999. 

4. While E.A.No.45 of 2000 was pending, it would appear that the judgment debtor agreed to sell the property to a third party. According to the decree holder, Rs. 45,000/- was still due to the bank at that time. The third party purchaser deposited that Rs. 45,000/- before the executing court on 21.7.2001. 

5. Meanwhile, the judgment debtor filed O.S.No.164 of 2000 before the Munsiff's Court, Kottayam against the decree holder bank claiming a sum of Rs. 78,738.90 allegedly collected in excess by the decree holder bank. That suit was dismissed on 18.12.2003 on the ground that the suit was not maintainable and if at all the plaintiff therein was aggrieved, his remedy was only to file an application before the executing court under Section 47 of the Code of Civil Procedure. 

6. Thereafter on 11.6.2002, the judgment debtor filed E.A.No.163 of 2002 for the following reliefs: 

"For the reasons stated in the accompanying affidavit filed along with this petition, it is humbly prayed that the Hon'ble court may be pleased to restore the execution petition No.249/90 in OS.No.551/87 and to call for the ledger containing the folio of the petitioner's loan account maintained by the plaintiff/Decree holder bank for favour of scrutiny to ascertain whether the amount of Rs.78431/- paid on demand by the petitioner out of court on 7.12.1999 to decree holder was legally due to it in addition of Rs.1,24,813/- paid by the petitioner towards decree debt." 

The decree holder bank filed objections in E.A.No.163 of 2002 and contended that no excess amount was collected from the judgment debtor. The decree holder stated that it has no objection to reopen the Execution Petition. Statements as to payments and adjustments were also filed by the Bank. On 5.10.2005, the Execution Petition was restored to file. 

7. The judgment debtor filed W.P.(C) No.7962 of 2006 before the High Court against the decree holder bank for a direction to the latter not to realize any further amount from the judgment debtor. That Writ Petition was disposed of permitting the judgment debtor to raise all the objections before the executing court. The executing court was also directed to look into the question whether the bank could be permitted to realize any further amount from the judgment debtor. 

8. After the stranger purchaser deposited Rs. 45,000/- before Court, E.A.No.45 of 2000 filed by the decree holder praying to review the order of the executing court recording full satisfaction of the decree was take up for hearing and the following order was passed on 23.3.2002: 

"It is submitted by both sides that the entire amount has been paid. The learned counsel for the decree holder is also heard. It is submitted that EA can be closed. EA closed."

9. After passing the order dated 23.3.2002 in E.A.No.45 of 2000, the judgment debtor moved E.A.No.163 of 2002 on 11.6.2002 claiming that excess amount was paid and that "there is something rotten somewhere". In E.A.No.163 of 2002, the judgment debtor raised a contention that the decree holder was not entitled to realize any interest beyond the period of three months from the date of the decree, in view of the specific terms in the decree. This contention was rejected by the executing court. On a fair reading of E.A.No.163 of 2002, the main thrust is on the contention that no interest was payable after three months from the date of the decree and the interest having been collected, the judgment debtor was entitled to get refund of the amount collected from him in excess of the amount due. 

10. The decree provides thus: 

"That the defendant is directed to pay to the plaintiff Rs.78,738.90 with interest at 16.5% from 3.11.87, within three months. The defendant do pay the cost to the plaintiff, failing which the plaintiff is to recover the same by sale of plaint 'A' schedule hypothecated movables and plaint 'B' schedule immovable properties. And if they are not sufficient against the defendant personally." 

11. The issues raised in the suit were the following: 

"1. Whether the defendant is entitled to an instalment decree? 

2. What is the rate of future interest to be awarded?" 

12. The relevant portion of the judgment answering these issues reads as follows: 

"6. The defendant has only prayed for an instalment decree and restricted interest at the rate of 6% per annum from the date of suit. The plaintiff is not agreeable for the said proposal. The suit is one for realisation of the amount by sale of the mortgaged properties. As this is a mortgage decree and not a simple money decree the defendant is not entitled to get an instalment decree. Moreover the conduct of the defendant shows that he does not deserve an instalment decree. Then the question is only about future interest. The transaction is admittedly a commercial transaction. Therefore under section 34 and order XXXIV Rule 11 of the Code of Civil Procedure plaintiff is entitled to get future interest at the contract rate. Nothing has been pointed out to depart from this provision and to grant only a lesser interest. Therefore I hold that the plaintiff is entitled to get future interest at the rate of 16.5% per annum from the date of suit till realisation. 

In the result the suit is decreed as follows:- The defendant is directed to pay to the plaintiff Rs.78,738.90 with interest at 16.5% from 3.11.87 and cost of the suit within 3 months from this date failing which the plaintiff is entitled to realise the same by sale of plaint "A" schedule hypothicated movables and plaint B schedule immovable properties and if they are not sufficient against the defendant personally." 

It is clearly stated in the judgment that the plaintiff is entitled to get future interest at the rate of 16.5% per annum from the date of suit till realization. However, in the last paragraph of the judgment, a period of three months is mentioned. According to the judgment debtor, the decree holder is entitled to get interest only for a period of three months and not thereafter. Such an interpretation is not possible on a fair reading of the judgment. The contention of the defendant was that interest was payable only at 6% per annum from the date of the suit. That contention was negatived by the trial court and it was held that the defendant was liable to pay interest at the contractual rate. The Court did not restrict payment of interest for a period of three months. On the other hand, the judgment is clear to the effect that future interest is payable till realization. The mention of three months' period in the last paragraph of the judgment would only indicate that the judgment debtor was granted a period of three months to pay the decree amount. During the said period of three months, the decree holder would not be entitled to execute the decree. A facility granted to the judgment debtor is being misinterpreted by him to claim exemption from payment of interest. Though the judgment and decree were passed on 17th August, 1989, the judgment debtor did not pay the decree amount in full till 2001. Such a person claims that he is not liable to pay any interest at all after the expiry of three months from the date of the decree.

13. The learned counsel appearing for the petitioner/judgment debtor submitted that the executing court need look into the decree alone and it is not proper to make an enquiry as to what was meant by the terms of the decree. Even if the decree alone is taken into account, the interpretation sought to be placed by the judgment debtor is not liable to be accepted. That the defendant was directed to pay the amount within three months does not mean that he need pay interest only upto that period. That direction to pay interest within three months is followed by the default clause enabling the decree holder to recover the amount in the manner indicated in the decree. Therefore, I hold that even if the decree alone is taken into account, the judgment debtor is liable to pay interest even after the expiry of three months from the date of the decree. 

14. It is well settled that if there is ambiguity in the decree, for the purpose of construing the terms of the decree, the judgment also can be looked into. There is no case for the judgment debtor that going by the judgment, he is not liable to pay interest from the date of decree till realization.

15. It is seen from the records that the judgment debtor filed E.A.No.94 of 2003 on 10.2.2003 claiming refund of the alleged excess payment of Rs. 1,53,901.50. In that application, the judgment debtor put forward the very same contention as raised in E.A.No.163 of 2002 that he was not liable to pay interest beyond the period of three months from the date of decree. E.A.No.94 of 2003 was filed after E.A.No.163 of 2002 (from which the Revision arises) was filed. However, when E.A.No.94 of 2003 came up for hearing on 5.4.2005, the judgment debtor did not press that application and it was, accordingly, dismissed as not pressed. Though he abandoned E.A.No.94 of 2003, the judgment debtor pursued E.A.No.163 of 2003. 

16. The learned counsel for the petitioner/judgment debtor submitted that the extracts of the loan accounts were directed to be produced by the bank. Ext.A1 is the account ledger folio maintained by the decree holder with respect to the account of the judgment debtor. On 12.9.1997, the entry therein is 'nil'. The judgment debtor contended that when the ledger folio shows 'nil', no amount would be due to the decree holder as on that date. Therefore, the demand of Rs. 78,431/- on 29.11.1999 and further demand of Rs. 45,000/- thereafter were illegal and unjust. It is contended that in the peculiar circumstances, the judgment debtor was compelled to pay the amount. However, the decree holder is not entitled to retain the same. The executing court is bound to protect the interests of the judgment debtor and to direct refund of the excess amount realized by the decree holder. 

17. It is submitted by the learned counsel appearing for the decree holder bank that after a suit is filed in respect of a non- performing asset, interest would not be calculated and entered in the ledger folio kept by the bank. A protested bill account would be maintained by the bank in such cases, in which the interest would not be entered. The protested bill account would never reveal the actual amount due to the bank, after filing the suit. It is submitted that when a decree is passed, the amount payable to the decree holder would be governed by the decree and not by the ledger folio in respect of the loan account kept by the bank. The account kept by the bank after filing the suit and the entries made therein are intended only for the internal accounting purpose of the bank. The learned counsel submitted that such method of accounting is being made on the basis of the circulars issued by the Reserve Bank of India. 

18. In the matter of execution of the decree, the parties are governed by the decree and not by the account maintained by the decree holder whether it is a bank or a private individual. What is the amount due under the decree is to be computed with reference to the decree and the payments, if any, made thereafter. The payments are to be made and certified as provided in Rules 1 and 2 of Order XXI of the Code of Civil Procedure. For the purpose of such proof, probably the ledger account maintained by the bank may be relevant. But the ledger account maintained by the bank for the period after the decree is not relevant at all for computing the actual amount due as per the terms of the decree. The judgment debtor was not entitled to rely on the entries in the ledger folio kept by the bank. I am inclined to accept the submission made by the learned counsel appearing for the decree holder that the entry 'nil' in the ledger folio was as stated by the decree holder in evidence and that it does not mean that no amount was due as on that date from the judgment debtor.

19. In this case, the judgment debtor examined himself not as PW1, but as PW2. He examined the Manager of the decree holder bank as PW1. It is strange to note that the same person who was examined as PW1 was also examined on the side of the decree holder as RW1. A reading of the deposition of PW1 would show that the questions put to him in the chief examination were in the nature of the questions which are generally put in cross examination. The practice of citing the opposite party as a witness is deprecated in various judicial pronouncements. It is not a healthy trend to examine the same person as a witness for the petitioner and as a witness for the respondent. The petitioner cannot say that he cited the respondent as a witness for the petitioner since he apprehended that the respondent would not examine himself. Even if the respondent does not adduce any evidence, that does not enable the petitioner to cite the respondent as a witness in normal circumstances. In such circumstances, the petitioner can only say that an adverse inference should be drawn against the respondent to the extent possible. Rule 3A of Order XVIII of the Code of Civil Procedure provides that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage. In the present case, no such permission was sought for by the petitioner/judgment debtor. 

20. Though the decree was passed on 17.8.1989 and the Execution Petition was filed in 1990, matters have not come to an end even now. All sorts of untenable contentions were raised by the judgment debtor at every point of time, wherever possible. The contentions put forward by the judgment debtor are devoid of merit. 

21. The learned counsel for the petitioner/judgment debtor submitted that going by the statement filed by the bank in the present proceedings, a sum of Rs. 2,346/- would be due to the bank and the bank is likely to proceed against him for realization of that amount together with interest. I do not think that the bank would request for such a relief after the various proceedings mentioned above were over. The Execution Petition was closed after recording full satisfaction. Pointing out a mistake on their part the bank applied to review that order. Now on payment of the last instalment of Rs. 45,000/-, the Execution Petition was closed on 23.3.2002, after recording the statements of both sides. Therefore, there is no question of a fresh Execution Petition being filed by the bank. 

For the aforesaid reasons, the Civil Revision Petition is dismissed with costs. 

(K.T.SANKARAN) Judge ahz/