S. Brahmanand, S/o K.N. Sreedhara Shenoy; S. Vinod; G. Ratna Bai v. V. Rajan; Suresh; R. Narayana Bhat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934** **WP(C).No. 11590 of 2007 (D)** ## **--------------------------OS.647/1995 of II ADDL.SUB COURT,KOZHIKODE** ## **PETITIONER(S):** ## **-------------** **1. S.BRAHMANAND, S/O.K.N.SREEDHARA SHENOY, KASABA AMSOM, DESOM, KOZHIKODE TALUK AND DISTRICT.** **2. S.VINOD, S/O.K.N.SREEDHARA SHENOY, IN -DO- -DO-** **3. G.RATNA BAI, W/O.K.N.SREEDHARA SHENOY,** - **IN -DO- -DO-** ## **BY ADVS.SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN** ## **RESPONDENT(S):** ## **-------------------** ## **1. V.RAJAN, S/O.VARADARAJULU CHETTY,** ## **7 RAJARAJESWARAI NAGAR, PONDICHERRY - 605511.** ## **2. SURESH, S/O.VARADARAJULU BHATT,** ## **7 RAJARAJESWARI NAGAR, PONDICHERRY - 605511.** ## **3. R.NARAYANA BHAT, S/O. RAGHAVA BHATT,** - **AACNERRY AMOM DESOM, KOZHIKODE TALUK, AND DISTRICT.** **BY ADV. SRI.R.RAMADAS BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11590 of 2007 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE PLAINT IN O.S. NO.647/1995 FILED BY THE PETITIONERS BEFORE THE SUB JUDGE, KOZHIKODE.** **EXT.P2: TRUE COPY OF THE DECREE DATED 31.03.1997 PASSED BY THE SUB JUDGE, KOZHIKODE, IN O.S.NO.647/1995.** **EXT.P3: TRUE COPY OF THE SALE DEED DATED 25.09.2006 DULY APPROVED BY THE TRIAL COURT.** **EXT.P4: TRUE COPY OF THE LOCATION CERTIFICATE DATED 30.10.2006 ISSUED BY THE VILLAGE OFFICER, NAGARAM. EXT.P5: TRUE COPY OF I.A.NO.5838/2006 IN O.S. NO.647/1995 BEFORE THE SUB COURT,KOZHIKODE FILED BY THE PETITIONERS ON 29.11.2006** **EXT.P6: TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENT NO.2 IN I.A. NO.5838/2006 DATED 20.01.2007.** **EXT.P7: TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENTS 3 & 4 IN I.A.NO.5838/2006 IN O.S.647/95.** **EXT.P8: TRUE COPY OF THE ORDER DATED 17.02.2007 PASSED BY THE SUB JUDGE,KOZHIKODE, IN I.A.NO.5838/2006.** ## **RESPONDENTS EXHIBITS:** ## **NIL** ## **//TRUE COPY//** ## **P.A. TOJUDGE.** **dlk** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 11590 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of June, 2012. ## **JUDGMENT** Under challenge is Ext.P8 order dated 17.2.2007 of the Sub Court, Kozhikode, whereby the said court dismissed I.A. 5838 of 2006 in O.S.647 of 1995. 2. That was a petition to amend the schedule of the plaint, decree and other records by correcting the village and desom. 3. The petitioners before this court are the decree holders in O.S.647 of 1995 before the Sub Court, Kozhikode, which had a checkered carrier. The suit was one for specific performance which was decreed by the trial court. In appeal, this court reversed the judgment and decree of the trial court and dismissed the suit. The aggrieved plaintiff carried the matter in appeal before the Apex Court and the Apex Court allowed the appeal and restored the decree of WPC.11590/2007. 2 the trial court and the decision is reported in **Brahmanand v. Muthugopal** (2005(4) K.L.T. 809). 4. The decree was put in execution. In pursuance to the decree, a sale deed was executed through court and the decree holder sought for registration of the sale deed. When he approached the Registrar's office, he was told that the village shown is wrong, i.e. the property is actually situated in Nagaram Village, whereas the property is shown in Kasaba village in the decree as well as in the plaint. This necessitated the petitioner to move a petition for correction of plaint, decree etc. so as to bring it in conformity with Ext.P4 certificate granted by the Village Officer showing that the property falls within Nagaram village. 5. That petition was opposed by the respondents herein on the ground that since the decree of the trial court has been confirmed by the Apex Court, any amendment to the decree etc. can be carried out only in the Apex Court WPC.11590/2007. 3 and the trial court was not competent to entertain the petition. 6. The trial court, mainly relying on the decisions reported in **Kannan v. Narayani** (1980 K.L.T. 9) and **Thomas v. Kunjamma** (ILR 2005(4) K.L.T. 185) held that only the Apex Court had powers to amend the decree, plaint etc. and dismissed the petition. 7. Shri. P.B. Krishnan, learned counsel appearing for the petitioners before this court pointed out that the court below has misdirected itself both on facts and in law. It omitted to note that the decree is one for specific performance and the trial court continues to retain control over the matter even after the suit is disposed of. It was pointed out that the trial court is clothed with powers under Sections 22 and 28 of the Specific Relief Act to grant appropriate reliefs even after the suit is disposed of by the trial court or is confirmed in appeal by the appellate court. It was also contended that the decree for specific performance is infact a preliminary decree and therefore the trial court WPC.11590/2007. 4 retains power to carry out necessary amendments so as to do justice between the parties. For the above proposition, learned counsel relied on the decisions reported in **Kumar** **Dhirendra Mullick v. Tivolipark Apartments (P) Ltd.** ((2005) 9 SCC 262), **Abdhu v. Assainar** (1993 (2) K.L.T. 711) and **Krishnan v. Mohammed** (2006(1) K.L.T. 156). 8. Learned counsel went on to contend that following the principles laid down in the above decisions, the suit in the present case being one for specific performance, even after the decree is passed and confirmed in appeal, the doctrine of merger applies only to a certain extent and the trial court retains the power to correct clerical or such other accidental errors which might have occurred in the proceedings. It was also contended that the trial court has got all ancillary powers to entertain the application for amendment and being a procedural matter, the trial court retains the power to do justice between the parties. 9. Learned counsel appearing for the respondents on the other hand pointed out that in view of the decision WPC.11590/2007. 5 reported in **Kannan's case** (supra) and **Thomas's case** (supra) which rely on the decisions of the Apex Court, it is clear that the power to allow amendments once the trial court decree merges with the appellate court decree is vested with the appellate court and in the case on hand only the appellate court has power to grant necessary reliefs. 10. True, going by the principles laid down in the decision reported in **Kannan's case** (supra) and **Thomas's case** (supra), it would appear that the trial court does not have power to allow the amendment since the decree of the trial court has merged with the decree of the Apex Court. That would be in the usual course. But the principle of merger cannot be mechanically applied in a specific performance suit and the court has to adopt a realistic and pragmatic approach to the issue. 11. A perusal of the provisions of the Specific Relief Act shows that even after the decree for specific performance is passed by the trial court, it is clothed with the powers under Sections 22 and 28 of the Act to grant WPC.11590/2007. 6 certain reliefs to the parties. This power is retained by the trial court even when the decree for specific performance passed by the trial court is confirmed in appeal by the appellate court. The doctrine of merger in a case of decree for specific performance applies only to a limited extent. 12. In the decision reported in **Kumar Dhirendra Mullick's case** (supra), it was held as follows: “In the case of Hungerford Investment Trust Ltd. v. Haridas Muhdhra, it has been held that when the court passes the decree for specific performance, the contract between the parties is not extinguished. That the decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree. Hence, the court retains control over the matter, despite the decree, it is open to the court to order rescission of the agreement, when it is found that the decree holder is not ready and willing to abide by his obligations under the decree.” It has to be borne in mind that the decree in the instant case was one for specific performance of a contract. It is well WPC.11590/2007. 7 settled that even after the decree is affirmed in appeal by the Apex Court and there is a merger in the strict sense, even in a case where time for deposit is granted by the appellate court, extension of time for the said deposit can be granted by the trial court. It is not necessary that the person concerned should approach the appellate court for extension of time. This shows that even after the decree passed by the trial court is confirmed by the appellate court, the trial court does not become _functus officio_ and retains control over the matter. The power granted to the trial court under Sections 22 and 28 of Specific Performance Act are indications in this regard. 13. In the decision reported in **Abdhu's case** (supra) dealing with a suit for partition, it was held as follows: “As the final decree proceedings were pending, the records of the case was within the power of the court for effecting corrections as the one found out in the course of the proceedings in this case. Such a power can be exercised by a WPC.11590/2007. 8 court in the course of the final decree proceedings. The learned Munsiff was right in holding that it had inherent power to correct the error in the survey sub division number of the property ordered to be partitioned as per the preliminary decree both in the schedule attached to the plaint and to the preliminary decree.” Following the said decision, in the decision reported in K **risahnan's case** (supra) it was held as follows: “It is by a mistake that the Sy.Nos. were not included. Justice requires that an amendment should be made. Then the question is whether the trial court will be right to amend. As the final decree proceedings were pending, the record of the case was within the power of the court for effecting corrections as the one found out in the course of the proceedings in this case. Instead of relegating the parties to a fresh suit to rectify the mistake, it will only be in the interest of justice to correct the mistake in the final decree proceedings itself in exercise of the inherent power of the court. Since the records are with the court, the court can make necessary amendments. The trial WPC.11590/2007. 9 court itself can exercise the power for amendment. So far as the court is concerned, it will be injustice, if the amendment is not allowed because there is no case that the property conveyed by Ext.B2 did not belong to the plaintiffs.” 14. Following the principles laid down in the above decisions, and also considering the fact that the decree is one for specific performance, and that the doctrine of merger applies only to a limited extent, it cannot be said that the trial court is denuded of power to effect corrections of accidental mistakes, omissions etc. After all procedure is a handmade of justice and procedural law cannot be utilized to deny legitimate rights due to the parties. Thus, viewed from any angle, it is very clear that in the case on hand the trial court retains the power to effect such corrections which fall within the ambit of Section 152 and Section 153 of the Code of Civil Procedure or assuming it does not fall within Section 152 or Section 153 of C.P.C., the power conferred under Section 151 C.P.C is still available. WPC.11590/2007. 10 15. In the case on hand, there is no dispute regarding the identity of the property and the only error arose with regard to the village and desom. The respondents before this court have no case that the property, in respect of which execution has been sought for, is not identified or is sought to be changed by bringing about the corrections sought for by the decree holder. Since the property remains the same, the amendment of the Village or desom cannot affect the rights of parties and it does not involve a fresh determination of the rights between the parties. 16. Viewed from any angle, the court below was not justified in dismissing the application especially when the property has been identified and at the execution stage the correction sought for is only with regard to the village and desom. Wrong description of the village cannot denude the right of the petitioners to enjoy the fruits of the decree. They are precluded now from enjoying the benefit of the decree by virtue of a mistake due to no fault of the WPC.11590/2007. 11 petitioners. Certainly they are entitled to the reliefs sought for. In the result, the writ petition is allowed and the impugned order is set aside. Proper corrections shall be done as per law and as per the petition. Since sometime has elapsed, the trial court will make appropriate corrections in the document and hand it over to the petitioners allowing them to re-present it for registration. **P. BHAVADASAN, JUDGE** sb.