Reethamma Joseph W/o A.C. Joseph v. Bastin S/o Vincent

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935** ## **OP(C).No. 3744 of 2013 (O)** **--------------------------AGAINST THE ORDER/JUDGMENT IN OS 235/2011 of SUB COURT, CHERTHALA** ## **PETITIONER(S)/RESPONDENT:** **------------------------------------------------** **REETHAMMA JOSEPH W/O.A.C.JOSEPH, ARATTUKULAM, CHETHI P.O. PERUNEERMANGALAM MURI, MARARIKULAM NORTH VILLAGE.** **BY ADV. SRI.S.M.PRASANTH** ## **RESPONDENT(S)/APPLICANT:** **------------------------------------------------** **BASTIN S/O.VINCENT, KOIPARAMBIL, ARUTHUNKAL P.O., CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE - 675 114.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 3744 of 2013 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT-P1:A TRUE COPY OF AWARD OF THE LOK ADALATH DATED 4.12.2013.** **EXHIBIT-P2: TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.774 OF 2013 IN O.S.NO.235/2011 DATED 17.7.2013.** **EXHIBIT-P3: TRUE COPY OF THE APPLICATION IN IA NO.624 OF 2013 IN O.S.235 OF 2011 DATED 11.6.2013.** **EXHIBIT-P4: A TRUE COPY OF OBJECTION IN I.A.NO.624/2013 IN O.S.235/2011 DATED 4.10.2013.** **EXHIBIT-P5: A TRUE ORDER IN IA 624/2013 IN O.S.235 OF 2011 DATED 7.10.2013 ON THE FILE OF SUB COURT, CHERTHALA.** **RESPONDENT(S)' EXHIBITS NIL** **---------------------------------------** **/TRUE COPY/** ## **P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN, J.** =-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P.(C)No.3744 of 2013** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 29[th] day of October, 2013** ## **JUDGMENT** The petitioner is the plaintiff in O.S.No.235 of 2011 on the file of the Court of the Subordinate Judge of Cherthala. The respondent is the sole defendant therein. The suit instituted by the petitioner is one for specific performance of an agreement for sale entered into between the parties on 20.5.2008. The dispute between the parties was settled in the Adalath held on 4.12.2012 by the Taluk Legal Services Authority, Cherthala. As per the terms of the compromise, a copy of which is on record as Ext.P1, the respondent/defendant was bound to pay to the petitioner the sum of Rs.13,70,000/- with interest at 9% per annum from 20.5.2008, within a period of six months. The parties had also agreed that for that purpose the respondent/defendant will be free to find out another purchaser, enter into an agreement with him and pay over the sum of Rs.13,70,000/- to the plaintiff before executing the sale deed. The parties had also agreed that upon such payment being made, it will be open to the defendant to apply to have the order of attachment passed on I.A.No.1679 of 2011 in O.S.No.235 of 2011 vacated. **O.P.(C)No.3744 of 2013** **2** There was a further stipulation to the effect that in the event of default, the petitioner/plaintiff will be free to have the sale deed executed in his favour through the process of the court. 2. The time limit stipulated in Ext.P1 compromise for payment of the sum of Rs.13,70,000/- expired on 4.6.2013. The respondent/defendant did not effect payment within the said period. A week after the time limit stipulated for payment expired, he filed I.A.No.624 of 2013 under section 148 read with section 151 of the Code of Civil Procedure for enlargement of the time limit stipulated in the award passed by the Adalath. Though in the relief portion of the application the period was not mentioned, in paragraph 5 of the affidavit he had averred that the time limit may be extended by a period of 15 days. Ext.P3 is a copy of the said application. The reasons which compelled him to make such a request were also set out in the affidavit. He had stated that though he had taken steps to sell the property to another person, a mistake in the re-survey number was noticed, that he thereupon applied for correcting the mistake in the survey records, but the mistakes could be rectified only on 7.6.2013. It was on these averments that the respondent sought extension of time by a further period of 15 days. 3. I.A.No.624 of 2013 which was filed on 11.6.2013, came up for consideration before the trial court on 12.6.2013. On that day, **O.P.(C)No.3744 of 2013** **3** even without objections being filed by the plaintiff, the trial court dismissed the application by the following order:- _“This Court has no power to extend the time in an award passed in Adalath. Hence the petition is dismissed.”_ Aggrieved thereby, the respondent filed C.R.P.No.346 of 2013 in this Court. That civil revision petition was heard and allowed by me by order passed on 30.9.2013. Relying on the decision of the Apex Court in **Thomas v. Thomas Job** [2005 (3) KLT 1042] wherein it had been held that the civil court has power to enlarge the time limit fixed in the award passed by the Adalath, I held that the impugned order cannot be sustained. In view of the fact that the trial court had not given any other reason to reject the application and the plaintiff had not been given an opportunity to file his objections, I restored I.A.No.624 of 2013 to file and directed the court below to dispose of the application afresh within two weeks. The plaintiff was directed to file his objections, if any, to I.A.No.624 of 2013 without fail on 4.10.2013. The court below was also directed to take up the application for hearing on 7.10.2013 and to dispose it of that day itself. Pursuant thereto, the petitioner/plaintiff filed Ext.P4 objections to I.A.No.624 of 2013. He contended that there is no explanation forthcoming as to the reason why within the period of six months, an application to correct the survey records **O.P.(C)No.3744 of 2013** **4** had not been made. He also contended that the reasons stated are not tenable and that even without the said corrections being carried out the plaintiff was prepared to purchase the plaint schedule property. The trial court considered the rival contentions and allowed I.A.No.624 of 2013 by Ext.P5 order passed on 7.10.2013. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. 4. I heard Sri.S.M.Prasanth, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The respondent/defendant had in I.A.No.624 of 2013 which was filed on 11.6.2013, prayed for enlargement of time limit fixed in Ext.P1 award only by a period of 15 days. The time limit stipulated for payment in Ext.P1 award expired only on 4.6.2013. As stated earlier, I.A.No.624 of 2013 was filed on 11.6.2013. The prayer therein was to enlarge the time for payment of the sum of Rs.13,70,000/- with interest by a period of 15 days from 7.6.2013 namely till 19.6.2013. The court below initially dismissed that application on the ground that it has no power to extend the time limit fixed in an award passed by the Adalath. The defendant successfully challenged that order by filing C.R.P.No.346 of 2013 in this Court which was allowed by order passed on 30.9.2013. In view of the submission made by the plaintiff that he **O.P.(C)No.3744 of 2013** **5** had not filed objections to the application and therefore, a chance may be given to him to file objections to the application, this Court directed reconsideration of the application by the trial court instead of considering the merits of the application at that stage. The plaintiff thereupon filed Ext.P4 objections wherein he contended inter alia that the application for enlargement of time is filed after the time limit stipulated for payment had expired, that the attempt is to delay and defeat the execution of the decree, that there is no explanation as to why he waited till the period expired for applying for enlargement of time, that the application is without bonafides, that no material is produced to substantiate the contention that an application had been made before the Revenue Divisional Officer to correct the survey records and that even without such corrections being carried out, the plaintiff was ready and willing to take the property. The execution court considered the rival contentions and relying on Exts.A1 to A5 produced by the defendant, held that the defendant had made earnest efforts to get mutation effected in his name and in getting the survey records corrected. The trial court held that the documents produced substantiate the case set out in paragraph 5 of the affidavit filed in support of I.A.No.624 of 2013 and that the request for 15 days further time is only bonafide. The trial court also took note of the fact that no prejudice will be caused **O.P.(C)No.3744 of 2013** **6** to the plaintiff as the plaintiff is entitled to interest at 9% per annum on the sum of Rs.13,70,000/- from 20.5.2008. The trial court also took note of the fact that the entire amount is available in deposit in Co-operative Bank, Muttam and State Bank of Travancore, Cherthala and therefore, time can be extended till 8.10.2013 for payment of the award amount together with interest at 9% per annum from 20.5.2008 till 4.6.2013 and at prevailing bank rate for the period thereafter. 5. In my opinion, no exception can be taken to the impugned order. The plaintiff cannot in any way be said to be prejudiced by the grant of 15 days time as sought for by the defendant. Notwithstanding the law laid down by the Apex Court in **Thomas v. Thomas Job** (supra), the trial court dismissed the application for enlargement of time on the ground that it did not have the jurisdiction to consider the request for enlargement of time fixed in an award passed by the Adalath. It was for that reason that there was further delay in the matter. The documents produced by the defendant in the trial court which are referred to in the impugned order substantiate his claim that time was taken to effect mutation in the revenue records and also to correct a mistake in the survey records. It is not in dispute that the property originally stood in the joint names of the defendant and another. That was the reason **7** ## **O.P.(C)No.3744 of 2013** why it became necessary to effect mutation in the revenue records. The compromise deed permitted the defendant to sell the property to another and to pay over the sum of Rs.13,70,000/- to the plaintiff before executing the document of sale. To sell the property to another, the defendant should be in a position to convince the intending purchaser, that he has clear title to the property and that the documents are in order. By no stretch of imagination can it therefore be said that the request made by the defendant was to delay and defeat the rights of the plaintiff or to delay the execution of a sale deed in favour of the plaintiff. On an over all view of the matter I am of the considered opinion that the exercise of the discretion by the trial court cannot be said to be perverse or irregular, warranting exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. I accordingly hold that there is no merit in the instant original petition. It fails and is dismissed. Sd/- ## **P.N.RAVINDRAN JUDGE** ## **vpv**