Greater Cochin Development Authority v. P.J. John & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** ## **WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932** ## **WP(C).No. 3908 of 2008(M)** **--------------------------------------** **[EP.NO. 422/1999 IN LAR.NO.51/1990 OF SUB COURT, ERNAKULAM]** **....................** ## **PETITIONER:** - **-------------------** **GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), REPRESENTED BY ITS SECRETARY, KADAVANTHRA, KOCHI- 682 020.** ## **BY ADV. SRI.S.B.PREMACHANDRA PRABHU.** **RESPONDENTS:** **------------------------** - ***1. P.J.JOHN, S/O.LATE P.V.JOSEPH PALAKKAPPALLIL HOUSE, THEKKUMBAGHAM, TRIPUNITHURA. *(DIED)** **2. THE SPECIAL TAHASILDAR (LA) GENERAL, ERNAKULAM.** **3. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.** ## ***ADDITIONAL RESPONDENTS 4 TO 8 IMPLEADED:** - ***4. PONNAMMA JOHN, AGED 73 YEARS, W/O. LATE P.J. JOHN, PALAKKAPPILLIL HOUSE, MONIPPILLIL ROAD, THEKKUMBHAGOM, THRIPUNITHURA.P.O – 682 301.** - ***5. JOSEPH JOHN, AGED 46 YEARS, S/O. LATE P.J. JOHN, PALAKKAPPILLY HOUSE, PANAKKAL ROAD, THEKKUMBHAGOM, THRIPUNITHURA.P.O – 682 301.** - ***6. JACOB JOHN, AGED 45 YEARS, S/O. LATE P.J. JOHN, PALAKKAPPILLY HOUSE, PALACE AVENUE LANE, COCHIN, PALACE P.O – 682 301.** **W.P.(C). NO.3908/2008-M:** ***7. JOHNSON JOHN.P., AGED 43 YEARS, S/O. LATE P.J. JOHN, PALAKKAPPILLY HOUSE, MONIPPILLIL ROAD, THEKKUMBHAGOM, THRIPUNITHURA.P.O – 682 301.** ***8. MAYMOLE MATHEW, AGED 40 YEARS, D/O. LATE P.J. JOHN, VAZHATHARA HOUSE, NADAKKAVU, UDAYAMPEROOR.P.O., ERNAKULAM DISTRICT.** ***ADDITIONAL RESPONDENTS 4 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 22/09/2010 IN I.A. NO. 7017/2008.** ## **R2 & R3 BY GOVT. PLEADER SRI. P.K. RAVIKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.3908/2008-M:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE DECREE DTD. 20/11/98 PASSED BY THE 3RD ADDL. SUB COURT IN LAR 51/90 (PURSUANT TO THE REMAND ORDER/JUDGMENT DTD. 20/02/97 IN LAA.36/93).** **EXT.P.2: COPY OF THE REQUEST DTD. 15/02/01 MADE BY THE R.1/DECREE HOLDER SEEKING `OUT OF COURT SETTLEMENT'.** **EXT.P.3: -DO- DTD. 29/06/01 AGREEING FOR A TOTAL SUM OF RS.12,25,000/- TO HAVE `OUT OF COURT SETTLEMENT' AND TO DO THE NEEDFUL AT THE EARLIEST.** **EXT.P.4: COPY OF THE PROCEEDINGS OF THE EXECUTIVE COMMITTEE INCLUDING THE RESOLUTION NO. 224/01-02 DTD. 06/09/01 ACCEPTING AND AGREEING FOR THE `OUT OF COURT SETTLEMENT' FOR A SUM OF RS.12.25 LAKHS.** **EXT.P.5: COPY OF THE RECEIPT DTD. 24/07/01 IN RESPECT OF THE 1ST INSTALMENT OF RS.6 LAKHS (MINUS INCOME TAX) PAID BY THE GCDA TO THE R.1/DECREE HOLDER.** **EXT.P.5.A: -DO- DTD. 25/08/01 IN RESPECT OF THE 2ND INSTALMENT OF R.3 LAKHS (MINUS INCOME TAX).** **EXT.P.5.B: -DO- DTD. 20/09/01 IN RESPECT OF THE 3RD AND LAST INSTALMENT OF RS.3.25 LAKHS (MINUS INCOME TAX).** **EXT.P.6: COPY OF THE `FULL SATISFACTION MEMO' FILED BY THE R.1/DECREE HOLDER IN E.P.422/99.** **EXT.P.7: COPY OF THE LETTER NO.2462/E&R/A2/94/GCDA DTD. 03/10/01 SENT BY THE GCDA TO THE DIST. COLLECTOR, ERNAKULAM, INFORMING THE `OUT OF COURT SETTLEMENT' AND THE `FULL SATISFACTION' OF THE AGREED AMOUNT.** **EXT.P.8: COPY OF THE LETTER NO. C2-6975/93 DTD. 20/10/01 OF THE DIST. COLLECTOR, ERNAKULAM, TO THE DIST. GOVT. PLEADER, ERNAKULAM, IN RESPECT OF THE SATISFACTION OF THE DECREE DEBT IN LAR 51/90.** **EXT.P.9: COPY OF THE AMENDED DECREE DTD. 10/02/04 PASSED BY THE 3RD ADDITIONAL SUB COURT, ERNAKULAM IN LAR 51/90, WITHOUT ANY NOTICE TO THE GCDA – DESPITE THE `OUT OF COURT SETTLEMENT' AND FULL SATISFACTION OF THE DECREE DEBT MUCH EARLIER.** **EXT.P.10: COPY OF THE AFFIDAVIT OF THE SPECIAL TAHSILDAR (LA) GCDA AS TO THE SATISFACTION OF THE DECREE DEBT FILED IN THE CONCERNED EA IN EP. 538/05 BEFORE THE 3RD ADDL. SUB COURT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **HARUN-UL-RASHID,J.** **-------------------------------** ## **W.P.(C). NO. 3908 OF 2009** **------------------------------DATED THIS THE 22ND DAY OF SEPTEMBER, 2010** ## **JUDGMENT** The writ petition is filed seeking to set aside Ext.P9 decree and all further proceedings in execution thereof and for a declaration that no further execution proceedings are maintainable by the lst respondent/decree holder, after the out of court settlement sought for vide Exts.P2/P3, accepted and agreed by the GCDA vide Ext.P4 satisfied by Exts.P5/P5(a)/P5(b) receipts leading to the filing of Ext.P6 memo recording full satisfaction and dismissal of the earlier E.P.No.422/99. 2. The petitioner is the Greater Cochin Development Authority (GCDA). The lst respondent is the decree holder in LAR.No.51/90 on the file of the III Additional Sub Court, Ernakulam (hereinafter referred to as 'the claimant'). The facts leading to the filing of the writ petition are as follows: 3. An extent of 9.92 Ares in Sy.Nos.927/1 and 927/6 of **-2-** WP(C).No.3908/2008 Elamkulam Village owned by the claimant was acquired by the Government for the Elamkulam West Extension Scheme. Section 4 (1) notification was published on 11/5/1989. The petitionerGCDA is the requisitioning authority. The Land Acquisition Officer awarded Rs.2,500/- per Are for 5.43 Ares of dry land and Rs.6,000/- per Are for 4.50 Ares of wet land. The Reference Court held that there was no material to grant any further enhancement and therefore confirmed the award. The claimant preferred an appeal before this Court and this Court set aside the award passed by the reference court and directed the reference court to reconsider the matter. The reference court by judgment and decree dated 20/11/1998 granted an additional land value of Rs.43,370/per Are for 5.42 Ares of dry land and Rs.43,400/- per Are for 4.50 Ares of wet land with solatium, additional market value and other statutory benefits. Ext.P1 is the said decree. The petitioner-GCDA was not a party either in the reference case or in the appeal referred above. The claimant filed E.P.No.422/99. In the execution petition **-3-** ## WP(C).No.3908/2008 also the petitioner GCDA was not a party. In the circumstances, the GCDA filed a petition to implead and got impleaded in the execution petition. On 15/11/2000 GCDA paid Rs.5,00,000/towards part payment of the decree debt and necessary petition was filed to set aside the order of attachment of the property sought to be sold at the instance of the claimant. While the EP was pending, on 15/2/2001 the claimant placed a request before the GCDA to have out of court settlement for a total lump sum payment of Rs.12,00,000/-. Ext.P2 is the said request. Since the request had to be considered at different levels, it took some time. Later, the decree holder requested to settle the matter for a total sum of Rs.12,25,000/-. Ext.P3 dated 29/6/2001 is the second request. The Executive Committee, GCDA as per resolution No.224/01-02 dated 6/9/2001 agreed for settlement and resolved to discharge the entire liability by paying a total sum of Rs.12,25,000/- to the decree holder. The copy of the proceedings of the Executive Committee dated 6/9/2001 is produced as Ext.P4. On the basis of Ext.P4 **-4-** WP(C).No.3908/2008 proceedings agreeing to the request made in Exts.P2 and P3, Rs.6,00,000/- was paid on 27/4/2001, Rs.3,00,000/- on 24/8/2001 and the balance Rs.3,25,000/- on 20/9/2001, after deducting the income tax from the above amounts. Thus the decree debt is paid following the out of court settlement arrived at. The receipts for payment of the aforesaid amounts on the respective dates are produced as Exts.P5, P5(a) and P5(b) respectively. 4. Having satisfied the decree amount, the lst respondent/decree holder filed Ext.P6 memo before the Execution Court admitting the full satisfaction of the decree making it clear that he had no further claim against the State of Kerala or the GCDA. The request made by the decree holder, the decision taken by the GCDA on the request, the payment of agreed amount in three instalments etc. are stated in detail in Ext.P6 memo. The decree holder further made it clear that he has no further claim against the State of Kerala or the GCDA. Ext.P7 is the communication issued by the GCDA to the District Collector, **-5-** ## WP(C).No.3908/2008 Ernakulam on 3/10/2001 informing the details of the payments made. By Ext.P8 communication dated 20/10/2001 the District Collector, Ernakulam informed the District Government Pleader, Ernakulam the position as to the out of court settlement and the payments made by the GCDA to the decree holder. The Execution Court on 23/11/2001 on the basis of the payments made and finding that the decree is fully satisfied, dismissed E.PNo.422/99 recording the satisfaction of the decree. The above-said facts would go to show that the Ext.P1 decree is fully satisfied and E.P.No.422/99 was dismissed recording full satisfaction of the decree. 5 The grievance of the GCDA in this writ petition is on the basis of the conduct of the decree holder subsequent to the afore-said proceedings. The decree holder filed I.A.No.1054/2002 before the reference court seeking amendment of the decree claiming more amounts. I.A.No1054/2002 was filed before the reference court without impleading the GCDA in the party array. **-6-** ## WP(C).No.3908/2008 The reference court as per order dated 10/2/2004 amended the decree granting additional amount. Ext.P9 is the copy of the amended decree. It is pleaded that Ext.P9 was passed behind the back of the GCDA and therefore the GCDA could not bring the actual facts and figures to the notice of the reference court. On the strength of Ext.P9 amended decree the decree holder/lst respondent filed E.P.No.538/05. In the said EP also GCDA was not made as a party. On getting notice of the EP, the Special Tahsildar (LA) who is one of the respondents, filed an affidavit pointing out the settlement made between the decree holder and the GCDA and recording satisfaction of the decree in out of court settlement. Ext.P10 is the said affidavit. The petitioner came to know about Ext.P9 amended decree only on the intimation given from the Office of the Government Authorities. Thereupon, the petitioner filed a petition for impleading before the execution court on 28/3/2007 and the same was allowed by the court below on 13/9/2007. The petitioner submitted a detailed statement of **-7-** WP(C).No.3908/2008 objection contending inter alia that the execution petition is not maintainable, in view of the out of court settlement arrived at and the full satisfaction recorded earlier. It is said that the execution court proceeded with coercive steps to realise the additional amount awarded as per Ext.P9 amended decree. According to the petitioner, the proceedings in EP.No.538/05 seeking to realise the additional amount covered by Ext.P9 amended decree is liable to be declared as null, void and non est. The facts stated in detail in the preceding paragraphs lead to the filing of the writ petition. 6. Ext.P1 is the original decree passed in the reference case. The decree holder/claimant filed E.P.No.422/99 for executing the decree. The petitioner-GCDA was not made as a party. The petitioner is the requisitioning authority. State of Kerala is the sole respondent. Pending execution the decree holder/lst respondent proposed a settlement in Ext.P2 letter addressed to the GCDA. In Ext.P2 letter it is stated that the total amount due as per the decree is 13,25,614/- and that if GCDA is prepared to settle and **-8-** ## WP(C).No.3908/2008 pay an amount of Rs.12,00,000/- in lump sum, he is prepared to accept the said amount towards the satisfaction of Ext.P1 decree. Ext.P2 is dated 15/2/2001. On 29/6/2001 the decree holder addressed another letter to the Secretary, GCDA stating that he is prepared to accept Rs.12,25,000/- towards the full settlement and satisfaction of the decree. Based on Exts.P2 and P3 letters, the executive committee of the GCDA resolved to settle the case by paying Rs.12,25,000/-. The decree holder received the said amount on different dates in 2001. Exts.P5, P5(a) and P5(b) are the copy of the receipts. After receiving the full amount of Rs.12,25,000/- the decree holder filed a memo before the court in the month of September, 2001 stating in detail the amounts received from the GCDA, after deduction of income tax as per rules. Ext.P6 is the said memo. In Ext.P6 it is stated that the decree holder received from GCDA an amount of Rs.12,25,000/-. He requested the court to record full satisfaction of his claim as per E.P.No.422/99. It is also stated therein that the decree holder has no further claim **-9-** WP(C).No.3908/2008 against the State of Kerala or against the GCDA. The prayer in Ext.P6 is to record full satisfaction of the decree claimed in E.P.No.422/99 in LAR.No.51/90 and also to dismiss the E.P. By letter dated 3/10/2001 the Secretary, GCDA informed the District Collector that the entire amount has been paid on the dates shown in the letter and further requested the District Collector to forward a copy of the decree satisfaction order to him. On receipt of Ext.P7 letter, the District Collector by Ext.P8 letter dated 20/10/2001 requested the District Government Pleader to forward the decree satisfaction order from the court. After receipt of the entire amount demanded, Ext.P6 memo was filed before the execution court. 7. Claiming more amounts the decree holder again approached the reference court for amendment of the decree. Ext.P9 is the amended decree granting additional amount. It is seen from Ext.P9 that GCDA is not made as a party. The decree was amended by order dated 10/2/2004 as per the endorsement made in the decree. On the basis of Ext.P9 amended decree, the petitioner **-10-** WP(C).No.3908/2008 again approached the execution court by filing E.P.No.538/05. The Special Tahsildar (LA) informed the execution court that the entire amount as per Ext.P1 decree has been paid and therefore requested the court to dismiss the EP. 8. After receiving the amount as per Ext.P1 decree and after settling the decree amount with the requisitioning authority, I do not find any reason for the decree holder to approach the court again requesting amendment of the decree. The said conduct of the decree holder and the initiation proceedings by the execution court based on the amended decree passed is the subject matter of this writ petition. After receiving the amount as per Ext.P1 and after filing Ext.P6 memo before the execution court stating that the judgment debtor has paid the amount and the decree is fully satisfied, the decree holder has no right to approach the execution court again claiming additional amount. He approached the reference court by suppressing the fact that he received the entire decree amount and further suppressing Ext.P6 memo filed by him **-11-** WP(C).No.3908/2008 requesting to record full satisfaction of the decree. Since the decree has been satisfied and the decree holder has no right to move the reference court again for amendment of the decree, that too after suppressing all the facts leading to the filing of Ext.P6 memo, the civil court went wrong in passing Ext.P9 decree and therefore, Ext.P9 amended decree shall be declared as null, void and non-est. After recording the satisfaction of the decree in E.P.No.422/99 the court has become functus officio. The cause of action does not survive and therefore absolutely there is no justification for passing Ext.P9 amended decree. The decree holder after receiving the amount from the requisitioning authority, filed Ext.P6 memo stating that he has already received the decree amount and requested the court to record full satisfaction of the decree. It is also stated in Ext.P6 that he had no further claim against the State of Kerala or the GCDA. That being the position, the reference court has no authority or right to pass a decree or amend the decree and the execution court have no to orders in jurisdiction pass **-12-** WP(C).No.3908/2008 E.P.No.548/05 which was filed based on Ext.P9 amended decree. Therefore, there is every justification for the petitioner to approach this Court by filing this writ petition under Article 227 of the Constitution of India for the relief sought for. 9. Once a decree gets fully satisfied and discharged, the decree becomes extinct and dead so far as the court is concerned, and unless there is scope for resuscitating the same in accordance with law and it gets resuscitated as such, neither party could seek nor the court could indulge in any amendment of such a decree which has become non est in the eye of law. This Court in the decision reported in **Sarojini v. Narayani Sarojini (2008 (1) ILR Kerala Series 153)** reiterated the aforesaid principle and held that this is the basic principle, which should govern the question of amendment of a decree. It was also held that the amendment presupposes the existence of a decree which is found to be incorrect or infirm or which is irreconcilable with the judgment and on those grounds or on some other analogous ground, amendment can be **-13-** WP(C).No.3908/2008 sought for. But when the decree as it stood has become extinct and dead in the eye f law by full satisfaction and discharge of the same the court will lack jurisdiction to order amendment of such a decree. It would be a different matter if by due process of law the recording of full satisfaction is nullified and the decree stands resurrected. 10. For the reasons I have stated in detail the petitioner is entitled to the relief sought for in the writ petition. Manifest injustice has been resulted, so far as Ext.P9 amended decree has been passed behind the petitioner-GCDA, who got impleaded in the earlier E.P.No.422/99 which was dismissed on recording full satisfaction in the out of court settlement proceedings. The reference court has exceeded its jurisdiction while passing Ext.P9 amended decree in respect of the claim which had already become final and satisfied and if so such court has already become functus officio. The execution court has no authority or jurisdiction to amend Ext.A9 decree. **-14-** WP(C).No.3908/2008 In the result, the writ petition is allowed. Ext.P9 decree and all further proceedings in execution thereof are set aside. It is made clear that no further execution proceedings are maintainable by the decree holder/lst respondent, after the out of court settlement sought for vide Exts.P2/P3 accepted and agreed by the GCDA vide Ext.P4, satisfied by Ext.P5/P5(a)/P5(b) receipts leading to filing of Ext.P6 memo recording full satisfaction and dismissal of the earlier E.P.No.422/99. The lst respondent shall pay an amount of Rs.10,000/- towards cost. **HARUN-UL-RASHID, Judge.** **kcv.**