O.P.(C) No.1534 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944** ## **OP(C) NO. 1534 OF 2022** **TO SET ASIDE ORDER DATED 08/04/2022 IN EA 341/2022 AND E.A 475/2022 IN E.P** **NO.643/2020 ON THE FILES OF PRINCIPAL SUB JUDGE, ERNAKULAM** ## **PETITIONER/RESPONDENT/DECREE HOLDER:** **ERNAKULAM CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LTD NO. E-169 GIRINAGAR, KOCHI, REPRESENTED BY ITS SECRETARY., PIN - 682011 BY ADVS. ALEX.M.SCARIA A.J.RIYAS SARITHA THOMAS SMITHA (EZHUPUNNA) CHITRA JOHNSON ALEN J. CHERUVIL SAHL ABDUL KADER** ## **RESPONDENTS/PETITIONERS/JUGMENT DEBTORS:** **1 P.A ABDUL GAFOOR AHAMED MANZIL, SANNIDHI ROAD, RAVIPURAM, KOCHI, PIN – 682016** **2 SHARABI KAKKOTTUVALAPPIL HOUSE, KEECHERY, PAPPINISSERY P.O, THALIPARAMBA, KANNUR, PIN - 670561 3 V.P ASMABI VALKPUTHARETHU HOUSE, MAYIL P.O, THALIPARAMBA, KANNUR, PIN - 670602 4 P. MARIUM HAJI MANZIL, THUTHIYOOR,THRIKKAKARA P.O, KOCHI, PIN - 682021** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)NO.1534 OF 2022** **2** ## **JUDGMENT** **Dated this the 24[th] day of August, 2022** Aggrieved by the common order passed by the Court of the Principal Subordinate Judge, Ernakulam in E.A.Nos.341/2022, 475/2022 in E.P.No.643/2020 (Ext.P11), the decree-holder has filed the original petition. The respondents are the judgment debtors. 2. The concise case of the petitioner, relevant for the determination of the original petition, is: the petitioner is a Society registered under the Kerala Cooperative Societies Act. A dispute arose between the petitioner and the respondents, which led the petitioner to file ARC No.390/1987 against the respondents, under Section 69 of the Kerala Cooperative Societies Act, 1969 (in short, 'Act'). The petition was allowed by Ext.P1 award. The petitioner filed E.P.No.643/2020 before the Court of the **O.P.(C)NO.1534 OF 2022** **3** Subordinate Judge, Ernakulam, under Section 76A of the Act, to execute the award. The respondents resisted the execution petition contending that it is time-barred. The court below upheld the respondents’ objection by Ext.P6 order. Ext.P6 order is passed by the Commercial Court, Ernakulam. The Commercial Court lacks inherent jurisdiction to entertain an execution petition filed under Section 76A of the Act. The petitioner has challenged Ext.P6 order before this Court in O.P.(C)No.2489/2021 and C.R.P.No.380/2021. This Court has passed Ext.P7 interim order, directing the parties to maintain 'status-quo' in respect of the property involved in A.R.C.No.390/1987. While so, the respondents approached the court below and filed E.A.No.341/2022, under Section 152 of the Code of Civil Procedure, to correct the cause title and the signature portion of Ext.P6 order. Even though the petitioner opposed the application, the court below **O.P.(C)NO.1534 OF 2022** **4** allowed the application by the impugned Ext.P11 order. Ext.P11 is erroneous, improper and unsustainable in law. Hence, the original petition. 3. Heard; Sri.Alex M Scaria, the learned counsel appearing for the petitioner and Sri.C.R.Shyamkumar, the learned counsel appearing for the respondents. 4. Sri.Alex.M.Scaria argued that it was improper on the part of the court below to have corrected Ext.P6 order, invoking Section 152 of the Code of Civil Procedure (in short, C.P.C), while O.P.(C)No.2489/2021 and C.R.P.No.380/2021 are pending before this Court because Section 153 A C.P.C stipulates that when an appeal is pending, it is for the Appellate Court to decide whether or not to correct an order or decree. Hence, Ext.P11 is erroneous and irregular and is liable to be set aside. 5. Sri.C.R.Shyamkumar defended the impugned order and contended that the court below has ## **O.P.(C)NO.1534 OF 2022** corrected an inadvertent clerical mistake in Ext.P6 order, which does not in any way prejudice the petitioner. A reading of the impugned order would reveal that the court below is a civil as well as a commercial court. It was the office of the court below that committed the mistake; therefore, the court below was well within its bounds to correct its own mistake. The contention that, in view of the pendency of the C.R.P, the court below is statutorily restrained from correcting its own order is wholly untenable. The original petition may be dismissed. 6. The point is whether there is any error, illegality, or impropriety in the court below correcting Ext.P6 by Ext.P11 order. 7. The court below in Ext.P11 has cogently explained the reason for carrying out the correction in Ext.P6 order. Paragraphs Nos. 7 to 12 of the Ext.P11 reads as follows: **O.P.(C)NO.1534 OF 2022** **6** “7. Point No.1:- It is clear from the records that E.P.643/2020 was filed by the respondent herein being the decree holder to execute the award passed in ARC.390/1987 before this court "The Principal Sub Court, Ernakulam". Judgment debtor entered appearance and filed objection challenging the executability of the decree. The matter was heard and disposed off by this court as Principal Sub Court. It is crystal clear that, all the proceedings since filing of the execution petition till its culmination were before this court "The Principal Sub Court, Ernakulam". 8. This court being notified as a commercial court considers matters filed before commercial courts and pass orders. **Though the subject matter jurisdiction is different in Sub Court and Commercial court the whole ministerial works are being handled by the same staff members and there are no separate sections for handling the matters. Thus, the clerical mistake had happened while drafting the fair copy in the cause title, at the signature portion of the Presiding Officer and also at the appendix portion** . 9. In the cause title of the final order it is mistakenly mentioned as "IN THE COURT OF THE JUDGE, COMMERCIAL COURT (PRINCIPAL SUB JUDGE), ERNAKULAM, instead of "IN THE COURT OF PRINCIPAL SUB JUDGE, ERNAKULAM." At the foot of the final order at the signature portions in two places the designation is mentioned as "Judge, Commercial court (Principal Sub Judge)" instead of "Principal Sub Judge" and so also in the appendix portion. Though it is not mentioned in the petition it is came to my notice that three documents were marked in the final order as mentioned in paragraph No.6 of the order, but the same are omitted to list in the appendix portion. 10. It is crystal clear that the above mistakes are only clerical errors and the commercial court cannot pass an order with respect to a matter entertained by Principal Sub Court unless it is transferred to that establishment. As I mentioned above the execution petition itself was filed before the Sub Court and hence **O.P.(C)NO.1534 OF 2022** **7** there is no question of passing orders by commercial Court in the matter. 11. Coming to the contention raised by the learned counsel for the respondent that this petition for correction of the order cannot be entertained as two matters vide Ext.A2 and A3 are pending before the Hon'ble High Court, the learned counsel for the petitioner brought to my notice the decision held by the Hon'ble High Court in Soman v. Appukutty reported in 1987 KHC 738 in which it is held that the pendency of an appeal will not in any way dis-entitle the trial court in amending the decree to make it in conformity with judgment. Section 152 of CPC clearly says 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. 12. In this case it is clear that there is no errors or mistakes in the judicial order passed and the mistake is crept only in the cause title and in the designation at the signature portion and also there is omission in listing the documents which were considered and cited in the order while preparing the fair copy. Therefore this court is duty bound to rectify the above clerical mistakes even without an application of the parties. Hence point No.1, is found in favour of the petitioner.” 8. On reading the above order, I recollect the observations of the Honourable Supreme Court in **Krishnaswamy S. Pd. v. Union of India** [(2006) 3 SCC 286], which reads thus: “16. The maxim “actus curiae neminem gravabit,” i.e. an act of court shall prejudice no man is an important **O.P.(C)NO.1534 OF 2022** **8** one. The maxim “is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law”, said Cresswell, J. in Freeman v. Tranah [12 CB 406 : 138 ER 964] . An unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified. 17. The maxim of equity, namely, actus curiae neminem gravabit—an act of court shall prejudice no man, is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other relevant maxim is, lex non cogit ad impossibilia—the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intentions of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. (See U.P. SRTC v. Imtiaz Hussain [(2006) 1 SCC 380] , Sk. Salim Haji Abdul Khayumsab v. Kumar [(2006) 1 SCC 46] , Mohd. Gazi v. State of M.P. [(2000) 4 SCC 342] and Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459])”. 9. This Court in **Mahendranath v. Abdul Kareem** [(2022 (4) KHC 257] and **George P.Cherukoth v. Mariyumma and another** [2015 (5) KHC 152] and a catena of decision has applied the maxim actus curiae **O.P.(C)NO.1534 OF 2022** **9** neminem gravabit to correct mistakes committed by courts. 10. In the case at hand, undisputedly, E.P.No.643/2020 was filed before the Court of the Principal Subordinate Judge and the execution petition was heard by the said court. The petitioner has no case that the execution petition was transferred by the learned Subordinate Judge to the Commercial Court, renumbered and reheard by the Commercial Court. But, when the certified copy of Ext.P6 common order was issued, it was typed as Commercial Court in the cause title and the signature portion of the order. Indisputably, the learned Subordinate Judge is discharging the jurisdictions of the civil court and commercial court. There is no finding in the order that it is passed under the Commercial Courts Act. It is the office of the court below that has prepared the order with a flawed cause title and operative portion. The ## **O.P.(C)NO.1534 OF 2022** **10** learned Judge, on being pointed out that an inadvertent clerical mistake has crept in the cause title and operative portion, invoked her powers under Sec.152 C.P.C and corrected Ext.P6 order by Ext.P.11 order. It is this correction that the petitioner is agitated about. 11. On a comprehensive consideration of the pleadings and materials on record and the reasons stated by the learned Subordinate Judge in the impugned order, I have no reservation in my mind to hold that the cause title and operative portion in Ext.P6 order was nothing but an inadvertent and bona fide clerical mistake committed by an office discharging dual jurisdictions. When such a mistake has brought to the notice of the court below, it was well within the authority and powers of the court to correct the mistake under Section 152 C.P.C. Otherwise, it would cause prejudice to the respondents for no fault of ## **O.P.(C)NO.1534 OF 2022** **11** theirs. The petitioner’s opposition is nothing but an attempt to capitalise on the mistake. Instead of harping on such technicalities, the petitioner would be at liberty to assail the legal errors in the order. The argument on Section 153 A C.P.C cannot be roped in for a matter of this nature. The original petition is meritless and does not deserve to be entertained. 12. The learned counsel for the petitioner submitted that the court below has, by notice dated 12.05.2022, directed the petitioner to surrender the certified copy of Ext.P6 common order to carry out the corrections. Since the petitioner has already preferred C.R.P.No.380/2021 before this Court by producing Ext.P6 order prior to its correction, I set aside Ext.P12 notice and dispense with the petitioner producing the copy for correction. Nonetheless, Ext.P6 order produced in the revision petition will be treated and read as Ext.P11 order. The petitioner shall forthwith ## **O.P.(C)NO.1534 OF 2022** **12** apply for a certified copy of the Ext.P11 order and produce the same with a memo in the revision petition in substitution for Ext.P6 order. The Registry is directed to place a copy of this judgment in C.R.P.No.380/2021. The original petition fails and is dismissed with the above observation. Sd/- **C.S.DIAS Judge** NR/24/08/2022 ## **O.P.(C)NO.1534 OF 2022** ## **13** ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT1 TRUE COPY OF THE AWARD DATED 27/12/1997 IN A.R.C. 390 OF 1987 ON THE FILES OF THE ASSISTANT REGISTRAR (GENERAL) CO -OPERATIVE SOCIETIES, ERNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 23/12/2009 IN O.P. NO 31396/2000. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 30/11/2010 IN A.P. NO. 58/1998 OF THE CO-OPERATIVE TRIBUNAL. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 19/09/2017 IN WPC NO. 24421 OF 2011 OF THIS HONOURABLE COURT. EXHIBIT P5 TRUE COPY OF THE EXECUTION PETITION NO. 643 OF 2020 FILED BEFORE THE SUB COURT ERNAKULAM. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 30/11/2021 IN EP NO. 643/2020 EXHIBIT P7 TRUE COPY OF ORDER DATED 21/10/2021 IN CRP NO. 380 OF 2021 EXHIBIT P8 TRUE COPY OF E.A. NO. 341/2022 DATED 27/02/2022 ON THE FILES OF THE HON'BLE SUB JUDGE'S COURT, ERNAKULAM. EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A. NO. 341/2022. EXHIBIT P10 TRUE COPY OF THE PETITION IN E.A. NO. 475/2022 DATED 02/04/2022. EXHIBIT P11 TRUE COPY OF ORDER DATED 08/04/2022 IN E.A 341/2022. EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 12/05/2022 ISSUED BY THE OFFICE OF THE PRINCIPLE SUB COURT ERNAKULAM** **==> picture [412 x 58] intentionally omitted <==**