Jose v. Selvin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935** ## **OP(C).No. 1914 of 2013 (O)** **-------------------------------------AGAINST THE ORDER/JUDGMENT IN AS 11/2008 of PRL.SUB COURT,IRINJALAKUDA DATED 29-01-2013** ## **PETITIONER(S):** **--------------------------** **JOSE, AGED 40 YEARS S/O.GEORGE, OLAPRATH MANIYANMAKKAL HOUSE PAPPINIVATTOM VILLAGE, THRISSUR DISTRICT NOW RESIDING AT OUD METHA, DUBAI U.A.E. P.O.BOX.NO.24775 REPRESENTED BY POWER OF ATTORNEY HOLDER M.C.JOSEPH SUNNY S/O.LATE CYRIL, MOOTHUNGAL HOUSE, KALATHARA DESOM KANNAMALY P.O., ERNAKULAM DISTRICT.** **BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA SRI.M.V.ANANDAN SRI.M.R.DHANIL** ## **RESPONDENT(S):** **-------------------------** **SELVIN,S/O.JOSE, OLAPRATH MANIYANMAKKAL HOUSE MATHILAKAM P.O., THRISSUR DISTRICT, PIN - 680 685.** ## **R1 BY ADVS. SRI.C.HARIKUMAR** ## **SMT.C.B.ANUROOPA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** **OP(C).No. 1914 of 2013 (O)** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1. TRUE COPY OF THE COMMON JUDGMENT PASSED BY THE MUNSIFF COURT KODUNGALLUR IN OS.NO.77/1998 DATED 25.10.2007.** **EXHIBIT P2. TRUE COPY OF THE APPEAL MEMORANDUM IN AS.NO.139/2008 OF SUB COURT IRINJALAKUDA.** **EXHIBIT P3. TRUE COPY OF MEMORANDUM OF APPEAL AS.11/2008 OF SUB COURT IRINJALAKUDA.** **EXHIBIT P4. TRUE COPY OF THE COMMON JUDGMENT OF THE SUB COURT IRINJALAKUDA IN AS.NO.11/2008 DATED 29.01.2013.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## _**“C.R”**_ ## **P.N.RAVINDRAN, J.** ## **----------------------------------------O.P.(C).No.1914 of 2013 ----------------------------------------Dated this the 23[rd] day of July, 2013** ## **JUDGMENT** The respondent herein instituted O.S.No.626 of 1997 in the Court of the Munsiff of Kodungallur joining the petitioner's father George, who is the respondent's paternal uncle, as the sole defendant. The respondent had in O.S.No.626 of 1997 prayed for a permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property and reducing it to his possession. The petitioner's father George thereafter instituted O.S.No.77 of 1998 in the Court of the Munsiff of Kodungallur joining the respondent herein and another as defendants wherein he prayed for a permanent prohibitory injunction restraining them from trespassing into the plaint schedule property and reducing it to their possession or from destroying the fence and compound wall situate around the plaint schedule property. 2. The suit properties involved in O.S.No.626 of 1997 and O.S.No.77 of 1998 are different parcels of land. The suits were however jointly tried along with O.S.No.572 of 1997 filed by O.P(C)No.1914/2013 -:2:- another wherein the plaintiff in O.S.No.626 of 1997 and the plaintiff in O.S.No.77 of 1998 were joined as the defendants. By Ext.P1 common judgment delivered on 25.10.2007, the Court of the Munsiff of Kodungallur dismissed all the three suits. Aggrieved thereby, the plaintiff in O.S.No.626 of 1997 (the respondent herein) filed A.S.No.11 of 2008 in the Court of the Subordinate Judge of Irinjalakuda. The petitioner's father George, the defendant in O.S.No.626 of 1997 and the plaintiff in O.S.No.77 of 1998 passed away on 3.3.2008 after the three suits were dismissed. A.S.No.11 of 2008 was filed on 24.1.2008 before the petitioner's father George passed away. After George died, his wife and daughters filed A.S.No.139 of 2008 in the Court of the Subordinate Judge of Irinjalakuda challenging the decree and judgment dismissing O.S.No.77 of 1998, joining, besides the defendants in the suit, the petitioner herein, as one among the respondents in the appeal. 3. The appeals, A.S.Nos.11 and 139 of 2008 were heard and allowed by Ext.P4 common judgment delivered on 29.1.2013. A.S.No.11 of 2008 filed by the respondent, who is the plaintiff in O.S.No.626 of 1997 was allowed and the defendant therein (the petitioner's father) was restrained from trespassing into 30 cents O.P(C)No.1914/2013 -:3:- of land situate in Sy.No.37/6 and 3 cents of land situate in Sy.No.33/5A marked as plots K and J in Ext.C2(a) sketch and 3 cents of land situate in Sy.No.37/5B marked as plot L therein. In this original petition filed under Article 227 of the Constitution of India on 27.5.2013, the petitioner seeks a declaration that Ext.P4 judgment in A.S.No.11 of 2008 on the file of the Court of the Subordinate Judge of Irinjalakuda is a nullity. The principal contention raised in the original petition is that A.S.No.11 of 2008 stood abated on the expiry of the period of 90 days from the date of death of George, the sole respondent therein, on 3.3.2008. It is also contended that the decree in A.S.No.11 of 2008 is passed against a dead person and therefore, it is a nullity. 4. Pursuant to the order passed by this Court, the records in A.S.No.11 of 2008 and A.S.No.139 of 2008, which were disposed of by Ext.P4 judgment, were called for. The records in A.S.No.139 of 2008 disclose that the said appeal was filed on 13.10.2008 by the wife and daughters of the plaintiff (the legal heirs of the plaintiff) in O.S.No.77 of 1998 and in that appeal, besides joining the defendants in the suit as respondents 1 and 2, the petitioner herein was joined as the third respondent. A.S.No.139 of 2008 was property instituted. The issue raised in O.P(C)No.1914/2013 -:4:- the instant original petition does not relate to A.S.No.139 of 2008. The records disclose that A.S.No.11 of 2008 filed by the plaintiff in O.S.No.626 of 1997 was presented on 24.1.2008 before the Court of the Subordinate Judge of Irinjalakuda. The sole respondent therein, (late George, who was the defendant in O.S.No.626 of 1997) passed away on 3.3.2008. The records in the said case disclose that after the death of the defendant in O.S.No.626 of 1997 (the sole respondent in A.S.No.11 of 2008), the appellant-plaintiff had filed I.A.No.1877 of 2008 to implead the legal heirs of the defendant, namely, his wife, daughters and son (the petitioner herein) as additional respondents 2 to 5 in the appeal. The said application was filed within the period of limitation prescribed for the purpose. Notice on that application was served on the additional respondents, who were sought to be impleaded and additional respondents 2, 4 and 5 entered appearance through Sri.P.D.Viswambaran, Advocate, who filed vakalath on their behalf on 24.7.2008. Later, on 7.7.2008, Sri.Rajesh R.Thampan, Advocate, filed vakalath on behalf of additional respondents 2 to 5. The petitioner is one among the persons who had executed the vakalath. The records disclose that though a formal order had not been passed on I.A.No.1877 O.P(C)No.1914/2013 -:5:- of 2008 allowing the said application, in the B diary it is stated that I.A.No.1878 of 2008 was allowed on 4.7.2009 and the legal heirs of the deceased respondent were impleaded as additional respondents 2 to 5, that additional respondents 2, 4 and 5 have appeared, that the additional third respondent did not appear and therefore notice was issued to the additional third respondent (the petitioner herein) by substituted service and the application was posted to 16.9.2009. The B diary discloses that on 16.9.2009 a paper publication was produced, the third respondent was called but he was absent. The paper publication in Pradeepam daily dated 21.8.2009 is also available in the records. However, as stated earlier, a formal order allowing I.A.No.1878 of 2008 is not available in the records. Apart from the statement in the B diary that I.A.No.1878 of 2008 was heard and allowed, there is nothing on record to indicate that the said application was allowed on 4.7.2009. The fact however remains that consequent on the death of the sole respondent in A.S.No.11 of 2008, the appellant therein had taken steps to implead the legal heirs of the respondent as additional respondents 2 to 5, within the period of limitation prescribed for the purpose. Notice was also served on them and they had entered appearance through counsel. O.P(C)No.1914/2013 -:6:- 5. As stated earlier, additional respondents 2, 4 and 5 had initially entered appearance in A.S.No.11 of 2008 on 24.1.2008 through Sri.P.D.Viswambaran, Advocate. Later, additional respondents 2 to 5 entered appearance through Sri.Rajesh R.Thampan, Advocate on 7.7.2008. Ext.P4 judgment in A.S.Nos.11 and 139 of 2008 discloses that Sri.R.Rajesh Thampan, learned counsel appearing for the respondents in A.S.No.11 of 2008 and for the appellants in A.S.No.139 of 2008 was heard. It is evident from the facts set out above that though I.A.No.1877 of 2008 had not been formally allowed, the legal heirs of the deceased respondent in A.S.No.11 of 2008 were also heard before A.S.No.11 of 2008 was allowed. It cannot therefore, be said that the decree in A.S.No.11 of 2008 is against a dead person whose legal representatives had not been put on notice or heard. The estate of the deceased respondent was represented by his legal heirs, who were sought to be impleaded and brought on the party array, by filing an application within the prescribed time. The appeal had therefore not abated. The purpose of impleading the legal representatives of a deceased defendant in a suit/respondent in an appeal is to enable the plaintiff/appellant to continue to prosecute the suit/appeal in cases where the right to O.P(C)No.1914/2013 -:7:- sue survives the death of the defendant/respondent. There was at best only an error or defect in the proceedings, viz. an omission to formally implead the legal representatives of the deceased respondent in A.S.No.11 of 2008 as additional respondents 2 to 5 in the appeal, which in my opinion is capable of being corrected under section 153 of the Code of Civil Procedure. Such being the situation, as I.A.No.1877 of 2011 was filed in A.S.No.11 of 2008 within the period of limitation prescribed for the purpose and notice thereon had been served on the legal representatives of the deceased respondent and they had entered appearance through counsel and were heard before the appeal was disposed of, I am of the opinion that the proper course would be to dispose of the original petition with a direction to the Court of the Principal Subordinate Judge of Irinjalakkuda to allow I.A.No.1877 of 2011 in A.S.11 of 2008, implead the legal heirs of the deceased respondent therein as supplemental respondents 2 to 5 in the appeal, suitably amend the decree and judgment delivered on 29.1.2013 and thereafter issue certified copies of the amended decree and judgment to the parties. 6. The question whether the starting point of limitation to execute a decree commences from the date of decree or from the O.P(C)No.1914/2013 -:8:- date on which the decree was actually drawn up and signed was considered by the Apex Court in **West Bengal Essential Commodities Supply Corporation v. Swadesh Agro Farming** **and Storage Pvt. Ltd.** , AIR 1999 SC 3421. The suit instituted by the appellant before the Apex Court was decreed ex parte by the High Court on 8.3.1982. The decree was actually drawn up and signed by the learned Judge only on 9.8.1983. The appellant moved for execution of the decree and the executing Judge ordered execution of the decree. The Division Bench of the High Court allowed the appeal therefrom and held that the execution petition is barred by limitation. On appeal, the Apex Court held that for a decree to be executable, it must be in existence and the decree would be deemed to come into existence immediately on the pronouncement of the judgment. The Apex Court also held that that the Code of Civil Procedure enjoins that the decree shall be drawn up expeditiously and in any case within fifteen days from the date of the judgment and that if the decree were to bear the date when it is actually drawn up and signed, then that date will be incompatible with the date of the judgment. The Apex Court also held that this incongruity is taken care of by Order XX Rule 7 of the Code of Civil Procedure, which inter alia provides O.P(C)No.1914/2013 -:9:- that the decree shall bear the date and the day on which the judgment was pronounced. The Apex Court held that a decree becomes enforceable the moment the judgment is delivered and merely because there was delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. The Apex Court held that an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act. As regards the applicability of the maxim _actus cruiae neminem gravabit,_ the Apex Court held that to invoke the maxim it is not enough to show that there is delay in drawing up of the decree; it must also be shown that the appellant has suffered some hardship or prejudice due to the delay of the court. It was held that in other words, there must be a nexus between the act of the court complained of and the hardship or prejudice suffered by the party. The Apex Court also held that as the decretal portion of the judgment which has the effect of a decree under rule 6A of Order XX of the Code of Civil Procedure could have been produced to execute the decree, it cannot be said that the appellant lost the period of limitation because of any act of the court and therefore, he cannot take O.P(C)No.1914/2013 -:10:- advantage of the fact that the court took time for drawing up and signing the decree. It was held that there was no nexus between the late drawing up of decree by the court and the filing of the execution petition by the appellant after the expiry of the period of limitation. The Apex Court also held that section 5 and section 12(2) of the Limitation Act are inapplicable to an execution petition and if time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and Order XXI Rule 11 of the Code of Civil Procedure, which is clearly impermissible. 7. The records in the instant case disclose that the appellants in A.S.No.11 of 2008 were vigilant in taking steps to file an application to implead the legal heirs of the deceased respondent. Though notice was ordered on the said application and the legal heirs had entered appearance, the appellate court did not pass an order formally allowing the application and bring the legal heirs on the party array. As the mistake was not that of the litigant, but that of the court, the court cannot hold that the appellants are responsible for the mistake which it had itself committed. In the light of the facts set out earlier, I am of the O.P(C)No.1914/2013 -:11:- opinion that the maxim _actus curiae neminem gravabit_ would apply to the case on hand and that the period of limitation prescribed for filing an appeal from the decree and judgment in A.S.No.11 of 2008 on the file of the Court of the Principal Subordinate Judge of Irinjalakkuda would begin to run only from the date of the amended decree and judgment. In **Jang Singh v.** **Brij Lal** , AIR 1966 SC 1631, the Apex Court held, interpreting the maxim _actus curiae neminem gravabit,_ that there is no higher principle for the guidance of the court than the one that no act of court should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court, he should be restored to the position he would have occupied but for that mistake. The said principle was applied by the Apex Court in almost similar circumstances in **Om Prakash Marwaha v. Jagdish Lal Marwaha,** (2009) 1 SCC 510. Jagdish Lal Marwaha, the respondent before the Apex Court had as plaintiff instituted a suit, which was dismissed. He carried the matter in appeal to the Court of the Additional District Judge. While the appeal was pending, Nanak Chand, the defendant, passed away on 3.1.1985. An application for impleading his legal heirs was made in time. The said application was kept pending and was not disposed of O.P(C)No.1914/2013 -:12:- though the appeal was finally decided in favour of the plaintiff. Consequently, the legal heirs of deceased Nanak Chand were not brought on record in the first appeal, as a result, when the decree was drawn up, it was drawn up against Nanak Chand, who was shown as the respondent. Though no formal order of substitution was made, the legal representatives of Nanak Chand filed a second appeal before the High Court which was dismissed on 12.12.1991 upholding the decree and judgment of the appellate court. In the meanwhile, the plaintiff passed away and his legal heirs were impleaded in the second appeal. In view of the fact that the legal heirs of the deceased defendant had not been brought on record in the first appellate court, which had decreed the suit, a decree in terms of the judgment passed by the High Court in the second appeal could not be drawn up, which in turn stood in the way of the decree from being executed. The legal heirs of the plaintiff thereupon filed an application for rectification of the decree and judgment in the second appeal and to draw up a fresh decree. That application was allowed with a direction to the Registry of the High Court to draw up a decree in the second appeal mentioning the names of the parties to the appeal at the time it was finally disposed of. The said order was challenged O.P(C)No.1914/2013 -:13:- before the Apex Court. Before the Apex Court, the respondents contended that as the plaintiff had brought the factum of death of the sole defendant to the notice of the appellate court by filing an application to bring his legal heirs on record, but due to inadvertence no order had been passed thereon and a decree was drawn up against the deceased defendant, the maxim _actus curiae neminem gravabit_ would apply to the case on hand. Accepting the said contention, the Apex Court held as follows:- _“18. Having carefully considered the submissions made on behalf of the respective parties, we are also inclined to hold that the facts of this case do not warrant any interference with the orders impugned in these two appeals. Admittedly the original defendant, Nanak Chand, had died during the pendency of the first appeal, but it is equally important that an application for substitution of his legal heirs had been made though no order has been passed thereupon and a decree was consequently drawn up against the original defendant who had already expired._ _19. The legal heirs of the plaintiff had brought the fact of the death of the sole defendant to the notice of the court, but it is through sheer inadvertence that the substitution was not effected. However, in the second appeal, the legal representatives of the original plaintiff, Jagdish Lal_ O.P(C)No.1914/2013 ## -:14:- _Marwaha, were made parties by the heirs of the deceased defendant, Nanak Chand, who are the appellants herein._ _20. The heirs of both the plaintiff and the defendant were, therefore, duly represented before the High Court in the second appeal and it is essentially a technicality which has prevented the heirs of the plaintiff from enjoying the benefits of the decree passed in favour of the plaintiff._ _21. We are convinced that this is a fit case where applying the above mentioned maxim, this Court should not interfere with the orders passed by the High Court.”_ 7A. After the judgment was delivered, the decision of a Division Bench of the Madhya Pradesh High Court in **Dr.Dwarakaprakash and another** v. **Mt.Safurabai and Others** (AIR 1958 M.P. 307) wherein a similar question arose, came to my notice. While a first appeal was pending in the High Court of Madhya Pradesh, Lalluram, one of the parties to the appeal passed away. An application for bringing his legal representatives on record was filed within time. Notice on that application was served on the legal representatives and they entered appearance through counsel and were heard in that appeal which was disposed of without a formal order being passed O.P(C)No.1914/2013 -:15:- on the application for impleading the legal representatives of Lalluram. As a result thereof, when the decree was passed, in the cause title, the name of the deceased party (Lalluram) was shown and not that of his legal representatives. The defeated party filed an application in the High Court for leave to appeal to the Supreme Court. In that application, the name of Lalluram alone was shown and not that of his legal representatives. Later, an application was filed to amend the memorandum of appeal by showing the name of the legal representatives of Lalluram. In that context, the Division Bench of the Madhya Pradesh High Court in **Dr.Dwarakaprakash and another** v. **Mt.Safurabai and others** (supra) held as follows: “(2) _We think that section 153 of the Code of Civil Procedure is wide enough to permit action to be taken to regularise the defective procedure of the Court. All that remained to be done was a formal order for bringing the legal representatives of Lalluram on the record of the case, though the legal representatives as parties to the appeal did appear and conduct it._ _In view of this, even though the case is finished, we think we should correct the error, which has remained on the record of the case, by allowing application No.724 of 1957 and ordering correction of_ O.P(C)No.1914/2013 -:16:- _the memorandum of appeal and the decree even at this late stage. We take action under sections 151, 152 and 153 of the Code of Civil Procedure.”_ The Division Bench also directed that the cause title of the petition for leave to appeal to the Supreme Court shall be suitably amended by scoring out the name of Lalluram and showing therein, the names of his legal representatives. The view that I have taken finds support in the said decision. I accordingly dispose of the original petition with the following directions:- (a) The Court of the Principal Subordinate Judge of Irinjalakuda shall, within two weeks from the date of receipt of a copy of this judgment, post I.A.No.1877 of 2011 in A.S.11 of 2008 with notice to the learned counsel appearing in the appeal and pass a formal order allowing the said application that day itself. The cause title to the memorandum of appeal in A.S.No.11 of 2008 shall thereupon be amended showing the names of the legal representatives who are sought to be impleaded as additional respondents 2 to 5. (b) The Court of the Principal Subordinate Judge of Irinjalakuda shall simultaneously amend the decree and judgment O.P(C)No.1914/2013 -:17:- in A.S.No.11 of 2008 and thereafter issue certified copies of the amended decree and judgment to the learned counsel on both sides, if applied for by them. Registry to transmit the records to the Court of the Principal Subordinate Judge of Irinjalakkuda along with a copy of this judgment. **P.N.RAVINDRAN, Judge.** ahg/vps. **P.N.RAVINDRAN, J. --------------------------O.P.(C).No.1914 of 2013 ----------------------------** ## **JUDGMENT** **23[rd] July, 2013**