E. Jacob Varghese v. State of Kerala (OP(C) No.164/2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).No. 164 of 2010(O) --------------------LAR NOS.117, 119, 120/1990 of SUB COURT, THIRUVALLA .................... PETITIONER (S): ------------------------------- E.JACOB VARHGESE, AGED 68 YEARS, S/O.CHACKO KOCHU CHACKO, ELANJIKKAL HOUSE, THURUTHY P.O., CHANGANACHERRY. BY PARTY-IN-PERSON E.JACOB VARGHESE RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA-1. GOVERNMENT PLEADER SHRI T.K.SAJEEV THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.164/2010 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER OF THE SUB COURT, THIRUVALLA IN EP NO.37/2005 IN LAR 120/1990 EXT.P2 TRUE COPY OF JUDGMENT OF THIS COURT IN WP(C) 20080/2008 EXT.P3 TRUE COPY OF THE ORDER THIS COURT IN RP NO.950/2009 IN WP(C) 20080/2008 EXT.P4(a) TRUE COPY OF THE ORDER OF THE SUBORDINATE COURT, THIRUVALLA IN EP 37/2005 IN LAR 117/1990 DATED 22.3.2008 EXT.P4(b) TRUE COPY OF THE ORDER OF THE SUBORDINATE COURT, THIRUVALLA IN EP 38/2005 IN LAR 119/1990 DATED 22.3.2008 EXT.P4(C) TRUE COPY OF THE ORDER OF THE SUBORDINATE COURT, THIRUVALLA IN EP 39/2005 IN LAR 120/1990 DATED 22.3.2008 EXT.P5 TRUE COPY OF THE REVIEW PETITION AS EA NO.198/2009 IN EP 37/2005 IN LAR 117/1990 EXT.P6 TRUE COPY OF THE DELAY CONDONATION PETITION AS EA NO.197/2009 IN EP 37/2005 IN LAR 117/1990 EXT.P7 TRUE COPY OF THE EA NO.200/2009 IN EP 38/2005 IN LAR 119/1990 EXT.P8 TRUE COPY OF THE DELAY CONDONATION PETITION AS EA NO.199/2009 IN EP 38/2005 IN LAR 119/1990 EXT.P9 TRUE COPY OF THE REVIEW PETITION AS EA NO.202/2009 IN EP 39/2005 IN LAR 120/1990 EXT.P10 TRUE COPY OF THE ORDER DATED 10.06.2010 IN EA NO.197/2009 IN EP 37/2005 IN LAR 117/1990 EXT.P11 TRUE COPY OF THE ORDER DISMISSING REVIEW PETITION IN EA NO.198/2009 IN EP 37/2005 IN LAR 117/1990 EXT.P12 TRUE COPY OF THE ORDER DISMISSING THE APPLICATION FOR CONDONATION OF DELAY AS EA NO.199/2009 IN EP 38/2005 IN LAR 119/1990 EXT.P13 TRUE COPY OF THE ORDER DISMISSING THE REVIEW PETITION IN EA NO.200/2009 IN EP 38/2005 IN LAR 119/1990 EXT.P14 TRUE COPY OF THE ORDER DISMISSING THE DELAY PETITION IN EA NO.201/2009 IN EP 39/2005 IN LAR 120/1990 EXT.P15 TRUE COPY OF THE ORDER REJECTING THE APPLICATION FOR REVIEW AS EA NO.202/2009 IN EP 39/2005 IN LAR 120/1990 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.164 of 2010 -------------------------------------Dated this the 19[th] day of July, 2011.** ## **JUDGMENT** The land acquisition proceedings as the records show, have a chequered career, starting from the notification dated 26.04.1984 acquiring the land. The Land Acquisition Officer awarded certain amount which was not acceptable to the petitioner and other claimants on whose request reference was made to the court of learned Sub Judge, Thiruvalla. The reference court took the cases on file as L.A.R.Nos.117, 119 and 120 of 1990 and passed awards which were challenged by petitioner and other claimants in appeals and then again, in appeals against the first order. Certain enhancements were allowed in favour of petitioner and other claimants. In the meantime, execution proceeding started with the petitioner and other claimants filing petitions for execution of the award as modified by the appellate courts. Certain deposits were also made in the meantime. At various stages petitioner had approached this Court with Writ Petitions and review of judgments. While so on 07.03.2008 the executing court passed Ext.P1, order in E.P.Nos.37, 38 and 39 of 2005 in L.A.R.Nos.117, 119 and 120 of 1990, respectively fixing the amount payable to the petitioners. Following that certain deposits were made and on 22.03.2008 the executing court closed all the execution petitions recording full satisfaction (as seen from Ext.P4 series, orders). After 637 days petitioner filed applications for review of the orders dated 22.03.2008 and to condone the delay in fling the said **OP(C) No.164/2010** 2 applications. Those applications were dismissed as per Exts.P10 to P15, orders. It was contended before the executing court for condonation of delay that the time during which Writ Petitions or review petitions were pending in this Court are to be excluded in computing the period of limitation. The executing court found that the said contention cannot be sustained in that to attract Section 14 of the Limitation Act (for short, “the Act”), it must be established that the failure of the prior proceeding was due to any defect of jurisdiction or other cause of a like nature. In the instant case the writ proceedings were dismissed by the High Court on merit. Hence petitioner is not entitled to the protection under Section 14 of the Act. In view of dismissal of the applications for condonation of delay, review petitions were dismissed as time barred. In this Original Petition under Article 227 of the Constitution, petitioner challenges Ext.P4 series, orders closing execution petitions recording full satisfaction and seeks to quash Exts.P10 to P15, orders. 2. Petitioner who appeared in person has referred me to various proceedings that has taken place right from the date of notification until Exts.P10 to P15, orders. In short, the contention of petitioner is that full satisfaction was recorded by the executing court without hearing counsel for petitioner and without even ascertaining whether the amount deposited really satisfied the decrees. It is also contended that even while Ext.P1, order was **OP(C) No.164/2010** 3 passed on 07.03.2008 the executing court had not taken into account the fact that even the amount actually awarded by the Land Acquisition Officer was not paid by the respondent/State. So much so, Ext.P1, order dated 07.03.2008 and, Exts.P10 to P15, orders dated 10.06.2010 are unsustainable, it is argued. It is pointed out that since a patent illegality or mistake is committed by the court, that shall not affect petitioner and other claimants hence the fact that the applications for review were filed after prescribed period should not stand in the way of the court correcting its own mistake. 3. Learned Government Pleader has contended that Ext.P1, order dated 07.03.2008 was passed after hearing the parties and hence, no interference is required. So far the prayer for review of the order closing the execution petitions recording full satisfaction is concerned, it is argued that the applications are hopelessly barred by limitation and executing court has no power to condone the delay and hence the question of entertaining the applications for review of the orders dated 22.03.2008 does not arise. 4. This Court had dismissed this Original Petition as per judgment dated January 12, 2011 finding that there is no substance in the grievance of petitioner either against Ext.P1, order or against Exts.P10 to P15, orders. Later, this Court reviewed the said judgment finding that there was an apparent error in the judgment dismissing O.P.No.164 of 2010 in that records produced by petitioner would reveal that even after the execution petitions were closed on **OP(C) No.164/2010** 4 22.03.2008 recording full satisfaction, there was a deposit of `1,002/- made by the respondent/State which indicated that even according to the respondent, there was no full satisfaction of the decrees as on 22.03.2008 when the execution petitions were closed. In that view of the matter the judgment dismissing the Original Petition reviewed and posted for hearing. It is thus that I heard petitioner who appeared in person and the learned Government Pleader. 5. I have gone through Ext.P1, order and it refers to the amount payable to the petitioner in various reference cases as on the date that order was passed (March 7, 2008). What is under challenge in this Original Petition is Exts.P10 to P15, orders refusing to review orders dated 22.03.2008. Ext.P4 series are the orders dated 22.03.2008 which state that the entire balance amount is deposited as per order dated 07.03.2008 and hence the execution petitions stand closed recording full satisfaction. Petitioner has a contention that his counsel was not heard while Ext.P4 series, orders were passed. In Ext.P4 I do not find any mention of the executing court hearing counsel for petitioner. At this stage it is not necessary for me to go into that question since presently I am concerned with the question whether Exts.P10 to P15, orders require interference. 6. No doubt, the executing court has dismissed the applications for review on the ground of limitation. Executing court has also observed that petitioner is not entitled to the protection of Section 14 of the Act for the reasons **OP(C) No.164/2010** 5 stated in Exts.P10 to P15, orders. I am not at the question whether the applications are barred by limitation or petitioner is entitled to the protection under Section 14 of the Act. 7. The basic principle that governs judicial institutions is that an act of court shall not prejudice a man. (Actus curiae neminem gravabit). If the executing court has passed an order that the entire decree is satisfied and has recorded full satisfaction while actually the entire amount due has not been deposited, it leaves me no doubt that it is a mistake committed by the executing court and that has to be corrected as that mistake shall not prejudice petitioner and other claimants. It is seen from the copy of payment schedule (filed by petitioner in E.P.Nos.37, 38 and 39 of 2005 in L.A.R.Nos.117, 119 and 120 of 1990) that it was for withdrawal of an amount of `1,002/- said to be deposited by respondent on 24.04.2008. Learned Government Pleader would make a correction that the demand draft for payment of the said amount was drawn on 31.03.2008. Either way it would appear that the said deposit came only after the executing court recorded full satisfaction as per Ext.P4, order on 22.03.2008. In otherwords, the deposit made, be it on 31.03.2008 or 24.04.2008 indicate that even as on 22.03.2008 when the executing court recorded full satisfaction there was actually no full satisfaction. If that be so, it is open to, may, the duty of the executing court to reconsider whether there was really full satisfaction when so **OP(C) No.164/2010** 6 entered on 22.03.2008. As above stated, if it was without making a calculation of the amount already paid and deposited that the executing court has entered full satisfaction. As aforesaid that shall not be affected the petitioner and other claimants. If that be so, the applications filed by petitioner should be treated as a reminder to the executing court to correct its own mistake by re-opening the execution petitions and proceed in the matter as provided under law. 8. On going through Exts.P10 to P15, orders I find that this aspect of the matter has not been taken into account probably because the fact of deposit of `1,002/- either on 24.04.2008 or 31.03.2008 as per DD No.194199 was not brought to the notice of executing court. 9. Petitioner has certain other contentions also to show that there was no full satisfaction of the decrees on 22.03.2008 such as, even the actual amount awarded by the Land Acquisition Officer in his awards were not paid, there was no direction from the respondent as to in which manner the amount deposited was to be appropriated whether it was towards the principal amount or interest and further, that the amount payable to the petitioner and other decree holders as per law and in the light of the decision in **Gurpreet Singh v. Union of India ((2006) 8 SCC 457)** was not paid. I leave these matters to the executing court. **OP(C) No.164/2010** 7 Resultantly this Original Petition is allowed. Ext.P4, series and Exts.P10 to P15, orders are set aside. The execution petitions are remitted to the executing court for fresh consideration. Executing court shall consider whether, when full satisfaction was entered on 22.03.2008 the entire amount due was paid to the petitioner and other claimants. Executing court shall decide whether as on the day full satisfaction was recorded any further amount was due to the petitioner in which case executing court has reopen the orders recording full satisfaction, revive all execution petitions and direct payment of the balance amount if any due to the petitioner and other claimants. Petitioner and other claimants shall appear in the executing court on August 10, 2011. **THOMAS P.JOSEPH, Judge.** **cks**