R.P. No. 459/2022 in O.P(C) No. 763 of 2017 & R.P. No. 462/2022 in O.P(C) No. 2822 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 RP NO. 459 OF 2022** **THE ORDER/JUDGMENTOS 436/2007 OF III ADDITIONAL SUB COURT,** ## **KOZHIKODE** ## **OP(C) 763/2017 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** SUBAIR C AGED 62 YEARS S/O. MUKKALI AHAMMEDKUNHI, KHADEEJA MANZIL, PANNIYANKARA, KOZHIKODE , PIN - 673001 BY ADVS. P.A.NOOR MUHAMED S.GIFFARA ## **RESPONDENT/S:** CHINNAPPA ABDUL NAZAR AGED 54 YEARS S/O. MUKKALI AHAMMEDKUNHI, KHADEEJA MANZIL, PANNIYANKARA, KOZHIKODE , PIN - 673001 BY ADV G.SREEKUMAR (CHELUR) **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11.08.2022, ALONG WITH R.P.NO.462/2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 2 ## **V.G.ARUN J.** ------------------------------------- **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017 ---------------------------------** Dated this the 11[th] day of August 2022 ## **O R D E R** The petitioner is seeking review of the common judgement in O.P. (C) Nos.763/2017 and 2822/2017. The original petitioners were filed challenging the sale of the decree schedule property in F.D.IA No.2021/2012 in O.S.NO.436/2007 of the Sub Court-III, Kozhikode. 2. The essential facts are as under; 3. The petitioner and respondent are brothers. O.S.No.436 of 2007 was filed by the respondent, seeking partition of plaint schedule property having an extent of 41 cents in Paniyankara Amsom Desam in Kozhikode. The suit was decreed as per Ext.P1 dated 27.07.2009, directing partition of the plaint schedule property into two equal shares. The respondent filed an application for passing the final decree as FDIA 2021 of 2012. The Advocate Commissioner valued the decree schedule property at Rs.2,47,14,000/-, the house and well at Rs.26,42,500/- and fixed the value of kuzhikoors as Rs.37,132/-. Thus the total value was **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 3 assessed at Rs.2,73,93,632/-. The Commissioner also reported that the decree schedule property cannot be divided equally due to the peculiar structure and line of the house. Based on the report, the court below issued Ext.P6 order dated 17.07.2015, finding the decree schedule property to be incapable of division and directing sale of the property among the sharers. The upset price for the purpose of auction was fixed at Rs.2,74,00000/-. The petitioner challenged Ext.P6 order in RFA No.639 of 2015. During the pendency of the appeal, the parties came to a settlement and Ext.P7 agreement for sale was executed. As per the terms of the settlement, the petitioner agreed to sell his share to the respondent for Rs.2,30,00000/-. Later, the RFA was dismissed as not pressed vide Ext.R1(b) judgment dated 02.11.2015. Thereafter, the respondent filed an interlocutory application seeking to reopen the final decree proceedings, alleging that the petitioner is not executing the sale deed, after having received an advance of Rs.10,00,000/-. By Ext.P8 order dated 12.04.2016, the court below reopened the final decree application. After the final decree application was reopened, the petitioner filed I.A No.2337 of 2016, beseeching the court to consider the issue of reservation and equities after adducing evidence. The court below dismissed that application by Ext.P11 order dated 31.8.2016 finding the petitioner to be not entitled, either for reservation or equity. Thereupon, the petitioner sought adjournment and the sale was adjourned from 27.10.2016 to 29.11.2016. The prayer for further adjournment made on 29.11.2016 was rejected and the sale was **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 4 rescheduled to 24.1.2017 and again to 3.2.2017. Accordingly, the sale was conducted on 3/2/2017. The petitioner failed to participate in the sale. As per order dated 3.2.2017, the property was auctioned in favour of the respondent for an amount of Rs.2,73,93,635/-. The respondent deposited Rs.13,69,681/- immediately, and the balance amount of Rs.1,23,26,816/- within one month. 4. In the original petition the sale was primarily on the ground that the auction was conducted without giving sufficient opportunity to the petitioner. The other ground of challenge regarding the property having been sold much below its actual market price. It was contended that the petitioner had prayer for equity and reservation, on the ground that he had been residing in the house situated within the decree scheduled property for more than 60 years. and had carried out extensive repairs to the building was not properly considered. It was also contended that RFA No. 639 of 2015 had been withdrawn based on a settlement and, the finding that the challenge against Ext. P6 had attained finality is not correct. 5. This court refused to accept the contention that the petitioner did not get sufficient opportunity to participate in the auction, as the proceedings of the final decree court revealed that the sale was scheduled to be held on 27/10/2016 and adjourned to 29/11/2016 on the petitioner’s request. On 29/11/2016, the petitioner had filed an interlocutory application seeking further adjournment, which was **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 5 dismissed by the Court and the sale rescheduled to 24/1/2017 and again to 3/2/2017. The contention regarding the equity and reservation, as also the dispute regarding value of the property, was repelled, finding that the contentions were correctly dealt with in Ext.P6 order. The fact that the petitioner had challenged Ext.P6 order in appeal and later got the appeal dismissed as withdrawn, was also taken into account. Even though petitioner contended that the appeal was withdrawn pursuant to Ext.P7 agreement, that submission was found to be without basis, since the withdrawal was not in accordance with the order 23 Rule 3. 6. Learned counsel for the review petitioner contended that the proceedings in the partition suit, which ultimately resulted in the order auctioning the property, is a nullity and _non est_ . It is argued that the entire proceedings in the partition suit and the final decree application stood concluded by Ext. P7 settlement. As such, the court below had become _functus officio_ and _coram non judice._ In support of the contention, reliance was placed on the decisions in _**D**_ **y. Director, Land Acquisition v. Malla Atchinaidu (2006) 12 SCC 87), Jagmitt Sain Bhagat and others v. Director, Health Services (2013) 10SCC 136), Harshad Chiman Lal Modi v. DLE Universal Ltd. & anr.(2005) 7 SCC 791) and Union of India v. Assn of Unified Telecom Service Providers of India (2011 10 SCC 543)** _**.**_ 7. The finding in the judgment that RFA No.639/2015 was not withdrawn in accordance with Order 23 Rule 3, was sought to be assailed by contending that, in the judgment in the RFA, it is clearly **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 6 stated that the appeal is being disposed of in view of the memo dated 26/10/2015. In the memo it was specifically stated that the matter has been settled out of court and hence the appeal need not be proceeded with. In that view of the matter, the judgment in the RFA is a judgment based on compromise. It is further contended that, If at all the RFA was required to be disposed of in terms of the Order 23 Rule 3, it should have been done by the court since the direction of law under Order 23 Rule 3 is to the Court and not to the parties. Finally it is contended that as a result of the judgment under review, the petitioner is getting Rs. 1,36,96,817/- instead of Rs.2,30,00,000/-. Relying on the decision in _**M.M.Thoma v Stat of Ke rala (2000 KHC 155)** ,_ it is contended that, being a court of record, the High Court is empowered and also duty bound to correct apparent errors committed by it. 8. Learned counsel for the respondents submitted that the review petition is misconceived and filed with the sole intention of protracting the final decree proceedings. It is submitted that all contentions raised in the review petition were elaborately argued and dealt within the judgment under review. The attempt of the petitioner is to get this court to rehear the original petition, raising new grounds of challenge. 9. As rightly contended by the Counsel for the respondents, all contentions raised in the review petition including lack of opportunity and reservation, were raised in the original petition and dealt with in the judgment under review. As such, further deliberation on the same **R.P.No. 459/2022 in O.P(C)No.763 of 2017 & R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 7 points would definitely amount to rehearing of the original petition. 10. The contention that the court below had become _functus officio_ and _coram non judice_ was never raised in the original petition, obviously for the reason that the petitioner had submitted himself to the jurisdiction of the final decree court without demur. Moreover, the order in I.A.No.74 of 2016 dated 12.04.2016 allowing the application for reopening the final decree proceedings, was never challenged. 11. The contention that under Order XXIII Rule 3, the appellate court should have passed a compromise decree is the RFA based on the not pressed cannot be countenanced, even going by the plain language of Order XXIII Rule 3 extracted hereunder; ## **Order XXIII Rule3. Compromise of suit.** —Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith 256[so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit. **R.P.No. 459/2022 in O.P(C)No.763 of 2017 &** **R.P.No.462/2022 in O.P(C)No.2822 No of 2017** 8 A reading of the provision makes it clear that that burden is upon the parties to satisfy the court regarding execution of the agreement of settlement or the compromise arrived at. It is preposterous to contend that the court should have presumed settlement from the not pressed memo and passed a compromise decree. 12. It is the settled law that an appeal couched as a review petition shall not be entertained. For the aforementioned reasons, the review petitions are dismissed. Sd/V.G.ARUN Judge dpk