CAN FIN HOMES LTD. v. OMANA VISWAMBARAN and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933** **CRP.No. 330 of 2011()** - **---------------------** **I.A.NO.7099/2007 IN OS.734/1999 of I ADDL.SUB COURT, THRISSUR** **....................** ## **REVISION PETITIONER(S):** **-----------------------------------** **M/S. CAN FIN HOMES LTD., HAVING ITS BRANCH OFFICE AT MACHINGAL LANE, THRISSUR -1, REP. BY ITS BRANCH MANAGRER, RATHEESH KUMAR.P.** **BY ADV. SRI.C.AJITH KUMAR** **RESPONDENT(S):** - **----------------------------** **1. OMANA VISWAMBARAN, W/O.VISWAMBARAN, MURIYAPURAKKAL HOUSE, KOOLIMATTAM, PERINJANAM.P.O, POKLAI, THRISSUR DISTRICT.** **2. VISWAMBARAN, S/O.V.K. KOCHURAMANKUTTY, VADAKKAN HOUSE, P.O. EANGANDIYOOR,THRISSUR DISTRICT.** **3. RAJAGOPALAN, CHULLIPARAMBIL HOUSE,** - **P.O. EANGANDIYOOR, THRISSUR DISTRICT.** **4. K.A. SADANANDAN (LATE), KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **5. MANI, W/O. K.A. SADANANDAN (LATE) KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **6. ANIL, S/O. K.A. SADANANDAN (LATE) KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **..2/-** **Kss** **..2....** ## **CRP.NO.330/2011** **7. AJEESH, S/O. K.A. SADANANDAN (LATE),** - **KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **8. DEEPANKURAN, S/O. K.A. SADANANDAN (LATE), KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **9. LATHA, D/O. K.A. SADANANDAN (LATE),** - **KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **10. AMBILI, D/O. K.A. SADANANDAN (LATE),** - **KUNNATH HOUSE, KUNDALIYOOR, THRISSUR DISTRICT.** **11. DEVARAJAN, S/O. ITHIKKATT RAMAKRISHNAN, KUNDALIYOOR, EANGANDIYOOR, CHAVAKKAD.** **R11 BY ADV. SRI.C.A.ANOOP** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRP.NO.330/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A: COPY OF THE PLAINT IN O.S.NO.734/1999 ON THE FILES OF SUB COURT, THRISSUR.** - **ANNEX.B: COPY OF THE JUDGMENT IN O.S.NO.734/1999 DTD. 10/02/2003 ON THE FILES OF SUB COURT, THRISSUR.** **ANNEX.C: COPY OF THE DECREE IN O.S.NO.734/1999 DTD. 10/02/2003 ON THE FILES OF SUB COURT, THRISSUR.** **ANNEX.D: COPY OF THE JUDGMENT DTD. 16/11/2009 IN WP(C) NO.21780/2007 ON THE FILES OF HON'BLE HIGH COURT OF KERALA.** ## **RESPONDENT'S ANNEXURES: N I L** ## **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **THOMAS P.JOSEPH, J.** **==================================== C.R.P. No.330 of 2011 ==================================== Dated this the 13[th] day of December, 2011** ## **O R D E R** This Civil Revision is in challenge of the order dated 02.07.2011 on I.A. No.7099 of 2007 in O.S. No.734 of 1999 of the court of learned First Additional Sub Judge, Thrissur. Petitioner/plaintiff sought for amendment of judgment and decree under Section 152 of the Code of Civil Procedure (for short, “the Code”) to make the decree enforceable against mortgaged property also contending that while pronouncing judgment and preparing the decree there was an inadvertent omission on the part of the court to mention that petitioner could realize the amount by sale of the mortgaged property. The 11[th] respondent who claims to have an interest in the subject matter in so far as he has obtained a decree against respondents 1 and 2/defendants 1 and 2 filed I.A. No.6282 of 2008 in the same suit and to hear him also while considering I.A. No.7099 of 2007. Apprehending that since the 11[th] respondent may not be heard in the matter, he approached this Court with W.P(C) No.5576 of 2010. This Court disposed of that Petition directing the learned Sub Judge to consider and pass orders on I.A. No.6282 of 2008 before taking up **C.R.P. No.330 of 2011** -: 2 :- I.A. No.7099 of 2007 or dispose of both the applications simultaneously in accordance with law as expeditiously as possible. In the light of that direction learned Sub Judge heard the 11[th] respondent also while considering I.A. No.7099 of 2007 and concluded that the prayer for amendment of the decree cannot be sustained. Accordingly I.A. No.7099 of 2007 was dismissed. The 4[th] defendant/4[th] respondent died while I.A. No.7099 of 2007 was pending and his legal representatives are impleaded in I.A. No.7099 of 2007 as respondents 5 to 11. That order is under challenge in this Civil Revision. 2. Learned counsel for petitioner contended that the 11[th] respondent has no say in the matter since he is not a party in O.S. No.734 of 1999 and as petitioner does not want a decree against him. It is also submitted that W.P(C) No.5576 of 2010 was disposed of without notice to the petitioner and it was not aware of the said judgment. Learned counsel would contend that it was not disputed by respondents 1 to 4/defendants 1 to 4 that property in question was mortgaged to the petitioner or that petitioner had prayed for a decree for recovery of money charged on the said property and by its sale. Notwithstanding that the decree drafted by the court below contains schedule of the ## **C.R.P. No.330 of 2011** ## -: 3 :- property, in the operative portion of judgment and consequently in the decree no relief is granted against property which according to the learned counsel is an inadvertent omission which is to be corrected under Sec.152 of the Code. Reliance is placed on the decision in **Syamala v. Catholic Syrian Bank Ltd.** (2000 [2] KLT 491). 3. Learned counsel for 11[th] respondent contended that the Civil Revision itself is not maintainable since appeal is the proper remedy. It is also contended that plaint did not contain a schedule of property allegedly mortgaged and as revealed from the averments in the plaint it would show that it was a simple suit for money and not a suit on mortgage. It is pointed out by learned counsel that court fee paid by petitioner is only under Section 22 of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). In the circumstances learned Sub Judge was right in dismissing I.A. No.7099 of 2007. 4. I shall first dispose of the objection regarding maintainability of the Civil Revision on the ground that an appeal is provided. Learned counsel for 11[th] respondent has invited my attention to Rule 1A of Order XLIII of the Code which states that where any order is made under the Code against a party and ## **C.R.P. No.330 of 2011** ## -: 4 :- thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and judgment should not have been pronounced. I am afraid that provision has no application to the fact situation. It is not a case where following an order passed by the learned Sub Judge on I.A. No.7099 of 2007 a judgment could be pronounced against petitioner. An order under Sec.152 of the Code is not made appealable under any of the provisions of the Code. Hence the preliminary objection raised on the ground that the order is appealable is dismissed. 5. The next question is on the fact situation whether it is a case where the decree of the trial court could be corrected under Sec.152 of the Code. That provisions deals with correction or amendment of judgments, decrees or orders and states that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. As per Sec.152 of the Code an error can occur in the judgment, decree or order by an accidental slip or omission as well. Apart from Sec.152 of the ## **C.R.P. No.330 of 2011** ## -: 5 :- Code there is Sec.153 of the Code which confers general power on the court to amend which states that the court may at any time on such terms as to costs or otherwise as it may think fit amend any defect or error (which necessarily includes amendment of decree) in its proceedings. 6. Annexure A is the copy of plaint in O.S. No.734 of 1999 where there is reference to the mortgage created in favour of petitioner over the property in question and relief prayed for in the suit is that a decree may be passed in favour of petitioner and against the defendants (respondents 1 to 4) by way of first charge for the sum shown in the plaint together with future interest at the rate of 25% per annum from the date of suit till realization compounded annually. Page 7 of the plaint (a true photocopy of which is produced along with the Civil Revision) contains the schedule of immovable property of first respondent/first defendant which was mortgaged in favour of petitioner. 7. I do not forget that learned counsel for 11[th] respondent has given me a certified photocopy of the plaint where schedule of property is not incorporated. But I find that even in that photocopy, relief prayed for is the same as in the ## **C.R.P. No.330 of 2011** ## -: 6 :- true photocopy of the plaint produced along with the Civil Revision. I find from the copy of decree that it contains schedule of property over which mortgage was created. It is difficult to think that without a schedule of property being attached to the plaint, it would find a place in the decree drawn up by the court. Thus it is clear that along with the plaint, a schedule of property mortgaged was also produced certainly in tune with the relief prayed for that petitioner may be allowed to realize the amount by sale of mortgaged property. 8. Question is that whether there is any accidental slip or omission (on the part of the learned Sub Judge) in granting relief with respect to the mortgaged property. On going through the copy of judgment it is seen that all the defendants (respondents 1 to 4) remained ex parte and petitioner filed proof affidavit. Exhibits A1 to A14 were marked. Learned Sub Judge observed that “hence case of the plaintiff is proved”. That is followed by the operative portion of judgment where a decree is granted in favour of petitioner and against respondents 1 to 4 but there is no mention about recovery of amount by sale of the property. Exhibit A6, marked in the case is the copy of sale deed No.16166/91 of Vadanappally Sub Registry which concerns the ## **C.R.P. No.330 of 2011** ## -: 7 :- property mortgaged by the first respondent. Thus it is clear from the judgment that when learned Sub Judge granted decree in favour of petitioner, the fact of mortgage in favour of petitioner and it claiming relief against mortgaged property was very much on record. The judgment does not show that for any reason whatsoever claim of petitioner against mortgaged property was negatived. 9. Learned counsel for 11[th] respondent argues that if petitioner had claimed relief against the mortgaged property court fee was payable under Sec.33 of the Act. But court fee is paid only under Sec.22 of the Act as it is a simple suit for money. I am inclined to think that payment of court fee or provision under the Act quoted cannot regulate or control the nature of suit. If court fee paid was not proper, contesting respondents ought to have pointed out the same or the court on its own motion should have directed petitioner to pay court fee in accordance with the correct provision of law. 10. I stated the circumstances under which petitioner was given a decree for money without mentioning about the mortgage in its favour. I also stated that it is not a case of learned Sub Judge rejecting the claim of petitioner for charge over the ## **C.R.P. No.330 of 2011** ## -: 8 :- property. Learned Sub Judge has referred to the provisions of Order XXXIV of the Code as to in what way there should have been a preliminary and final decree in a suit on mortgage. But as things stand now, a composite decree for recovery of money by sale of property is permissible. I am not impressed by the reasons stated by the learned Sub Judge to disallow the prayer made in I.A. No.7099 of 2007. 11. If authority for the situation is required, it is available **Syamala v. Catholic Syrian Bank Ltd.** (supra). There, in a suit for money praying for a decree charged over property there was omission or failure as the case may be to grant such a decree. An application was preferred under Sec.152 of the Code for correction. This Court held that there is no finding that plaintiff was not entitled to a get charge on the suit property though it is mentioned that memo of deposit was not produced by the bank. Having regard to the circumstances it was held that failure to give a charge decree was unintentional and the result of oversight which could be corrected in exercise of power under Sec.152 of the Code. I am in agreement with the view expressed by the learned Judge. Again in **Varghese v. Indian Bank** (1998 [2] KLT 601) and **Pradeep Kumar v. State Bank of Travancore** (1998 ## **C.R.P. No.330 of 2011** -: 9 :- [2] KLT 927) this Court referred to the power of Court under Sec.152 of he Code to correct the decree. I am inclined to think that this is a case where there is an accidental slip or omission on the part of learned Sub Judge in granting a charged decree in favour of petitioner as prayed for, having regard to the circumstances stated. If that be so, learned Sub Judge was not correct in dismissing I.A. No.7099 of 2007. Resultantly, Civil Revision is allowed as follows: (a) Order dated 02.07.2011 on I.A. No.7099 of 2007 in O.S. No.734 of 1999 of the court of learned First Additional Sub Judge, Thrissur is set aside and I.A. No.7099 of 2007 will stand allowed. (b) Court below is directed to amend the decretal portion in the judgment and the decree as prayed for in I.A. No.7099 of 2007. All Pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv