High Court of KeralaSingle Judge2022-07-13Original Petition dismissed; Ext.P10 upheld; no...

V.A. Augustine vs. K.U. Francis

Case / Petition Number:OP(C) NO. 1235 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-07-13
Court Decision / Holding: Original Petition dismissed. Ext.P10 sustained; no interference under Article 227; the sale deed Ext.P3 stands and the encumbrance of the bank remains noted only insofar as it is governed by Exts. P1 and P2.
Final Disposition: Original Petition dismissed; Ext.P10 upheld; no interference under Article 227.

Parties to the Case

Appellants / Petitioners

V.A. Augustine

Respondents

K.U. Francis

Legal Representation & Advocates

Counsels for Petitioners

• Abraham Mathew (Vettoor)
• Anil Abey Jose
• Vishnuja P.M.

Case Synopsis & Summary

This Original Petition (OP(C)) challenges Ext.P10, the Sub Court, Pala's order dated 03-01-2022 in I.A. No. 1/2020 in O.S. No. 21/2014, arising from a Lok Adalath settlement dated 28-05-2015 (Ext. P1). The compromise provided that the petitioner would pay Rs. 11,00,000 in two installments; failure would enable the respondent to seek enforcement by transferring the property covered by the sale agreement. The respondent moved I.A. No. 209/2016 to convey the property in his favour; the court allowed it (Ext. P2) and a sale deed (Ext. P3) was executed, noting a mortgage in favour of a Co-operative Bank, which the petitioner contends was not disclosed. The petitioner subsequently filed I.A. 1/2020 to recall Ext. P3 and to obtain a draft sale deed showing encumbrance with the bank, but Ext. P7 was dismissed by Ext. P10. The petitioner argues that Section 152 of the CPC authorizes correction of clerical/arithmetical errors and that the Execution Court should rectify the registered deed to conform to the decree; reliance was placed on a Supreme Court decision in Rajbit v. Suraj Bhan. The High Court ultimately finds no error in Ext. P10, notes the bank’s encumbrance, but holds there is no enabling provision to correct Ext. P3 by rectification, and dismisses the petition. It leaves Ext. P3 intact and declines interference under Article 227."

Provisions of Law Cited

Section 152 of the Code of Civil ProcedureSection 28 of the Specific Relief ActArticle 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends Ext.P10 is legally defective for ignoring the bank's encumbrance on the property. The sale deed Ext.P3 was registered without disclosing the bank’s charge, and under Section 152 CPC the Execution Court should correct the deed to reflect the decree. Reliance was placed on Rajbit v. Suraj Bhan to stress that the Court must apply its mind and alter the draft deed to conform to the decree, rather than permit a failed bargain to stand uncorrected. The petition asserts Ext.P1 Lok Adalath award binds the parties and Ext.P2 directed the sale with the encumbrance, so Ext.P3 should disclose the mortgage. Rectification by a deed, not reversal of the sale, is sought to preserve the bank’s first charge. Though delay is argued, the central point is illegality in Ext.P10; the petition seeks only disclosure of encumbrance so the decree is satisfied and the bank’s rights protected.

Contentions of Respondents

Respondent contends Ext.P3, a registered sale deed issued by court order, stands and is enforceable. The omission to mention the bank’s encumbrance is an incidental defect and not removable by Section 152, which covers clerical/arithmetical errors in orders or judgments only. There is no provision to correct Ext.P3 by a rectification deed through a Section 152 petition; rectification would require separate proceedings. The petitioner had no locus to file Ext.P7, and Ext.P1/Ext.P2 guided the sale; Ext.P10 is proper. The bank’s rights remain intact; Ext.P3 must be read with Exts. P1 and P2. The petition is time-barred and lacks merit; the court should not interfere under Article 227, as the Lower Court’s order was legally sound.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajbit v. Suraj Bhan and another	Civil Appeal No.1700/2022	Mentioned Only	Cited by counsel to argue for correction of the draft sale deed under Section 152 CPC; however, the High Court did not rely on this decision to decide the case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against V.A. Augustine vs. K.U. Francis and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

OP(C) NO. 1235 OF 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 OP(C) NO. 1235 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OS 21/2014 OF SUB COURT,** ## **PALA** ## **PETITIONER/S:** V.A. AUGUSTINE AGED 62 YEARS S/O AUGUSTY, VAZHAKKALAYIL HOUSE, VELLILAPPALLI KARA, VELLILAPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686576 BY ADVS. ABRAHAM MATHEW (VETTOOR) ANIL ABEY JOSE VISHNUJA P.M. ## **RESPONDENT/S:** K.U. FRANCIS S/O ULAHANNAN, KOIKKAL VARAPPARAMBIL, NEYYUR KARA, PULIYANNUR VILLAGE, MEENACHIL TALUK., PIN - 686574 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1235 OF 2022 2 ## **JUDGMENT** The original petition is filed assailing the order dated 03.01.2022 in I.A.No.1/2020 in O.S.No.21/2014 (Ext.P10) of the Court of the Subordinate Judge, Pala. 2. The petitioner's case, in a nut shell, relevant for the determination of the original petition is that he was the defendant in the above suit, filed by the respondent, for a decree of specific performance of an agreement of sale dated 22.07.2013. During the course of the proceeding, the petitioner and the respondent settled their disputes before the Lok Adalath held on 28.05.2015 as per Ext.P1. While drawing the compromise petition, the respondent was given the liberty to proceed against the property covered by the agreement of sale if the petitioner failed to pay off the amount of Rs.11,00,000/- in two installments. Alleging non-compliance on the part of the petitioner, the respondent had filed OP(C) NO. 1235 OF 2022 3 I.A.No.209/2016, to convey the property in his favour. The same was objected by the petitioner. He also filed I.A.No.791/2016 to dismiss I.A.No.209/2016 and I.A.No.831/2016, under Section 28 of the Specific Relief Act, to rescind from the agreement of sale. However, the Court below by Ext.P2 common order dismissed I.A.Nos.791/2016 and 831/2016 and allowed I.A.No.209/2016, by directing the sale deed to be executed in favour of the respondent. The respondent without mentioning about the mortgage created in favour of the Co-operative Bank, got Ext.P3 sale deed executed in his favour. The Bank has initiated criminal proceedings against the petitioner. The petitioner has got himself enlarged on bail by an order of pre-arrest bail passed by this Court. Later, the petitioner had filed I.A.No.1/2020 before the Court below, to recall the sale deed bearing No.937/2017 registered before the Sub Registrar Office, Meenachil and to direct the respondent to produce the draft sale deed disclosing OP(C) NO. 1235 OF 2022 4 encumbrance with the bank. The respondent had filed Ext.P8 counter affidavit to Ext.P7 application. The Court below, by the impugned Ext.P10 order, dismissed Ext.P7 application. Ext.P10 is erroneous and unsustainable in law. Hence, the original petition. 3. Heard, Sri. Abraham Mathew, the learned counsel appearing for the petitioner on admission. 4. Sri.Abraham Mathew argued that the Court below has gone wrong in executing the sale deed in favour of the respondent, without noting the encumbrance of the Bank over the property. Therefore, the Court below could have very well corrected the registered sale deed invoking the power under Section 152 of the Code of Civil Procedure. He relied on the decision of the Honourable Supreme Court in **Rajbit vs. Suraj Bhan and another** (Civil Appeal No.1700/2022) to drive home his contention that it is the duty of the Execution Court to apply its mind and OP(C) NO. 1235 OF 2022 5 make alterations in the draft sale deed which should be in conformity with the decree. 5. The point that arises for consideration in the original petition is whether there is any error or illegality in Ext.P10 order passed by the Court below. 6. It is on record that the subject matter in dispute between the parties were settled as per Ext.P1 compromise petition and award dated 28.05.2015 passed by the Lok Adalath. The petitioner had agreed to pay Rs.11,00,000/- in two installments, failing which, the respondent would be at liberty to seek for enforcement of the decree by getting the property covered by the agreement of sale executed in his favour. 7. Undisputedly, the petitioner failed to comply with the conditions in Ext.P1. The respondent then filed I.A.No.209/2016 before the Court below, to OP(C) NO. 1235 OF 2022 6 execute the sale deed in his favour. The Court below, by Ext.P2 order, allowed the application and directed the sale deed to be executed in favour of the respondent, after specifying that there is a mortgage created in favour of the Bank. Later, an Officer of the Court executed Ext.P3 sale deed in favour of the respondent. The petitioner has not challenged Ext.P1 award or Ext.P2 common order passed by the Court below. It is after three years that the petitioner has filed I.A.No.1/2020 before the Court below, to direct the Court below to call for the original of the sale deed (Ext.P3) from the respondent and cancel the same and to direct the respondent to produce the draft sale deed disclosing encumbrance with regard to the loan liability noted in Ext.P2 common order. 8. The Court below held that it was beyond the powers of the Court under Section 152 to correct a registered document. OP(C) NO. 1235 OF 2022 7 9. It is to be borne in mind that the petitioner has no right or locus to file an application in the nature of Ext.P7. As far as he is concerned, he has failed to comply with the conditions in Ext.P1 award and has not challenged Ext.P2 order. Consequently, the Court below has executed Ext.P3 in favour of the respondent. The omission to mention about the charge of the Bank in Ext.P3, will not prejudice the petitioner in any manner. It goes without saying, the Bank has the first charge over the property. Ext.P3 will have to be read in conjunction with Exts.P1 and Ext.P2 order. It is the Court that has executed Ext.P3 document, without mentioning about the charge. Ext.P3 is a registered document. If any correction is to be made, the same can only be by a rectification deed, that too need not be the concern of the petitioner. In any case, Section 152 of the Code of Civil Procedure, which is only to correct a clerical or arithmetical error in an order/judgment, cannot be invoked to redress the OP(C) NO. 1235 OF 2022 8 exigency at hand. There is no enabling provisions in the Code, to correct the omission in Ext.P3. I do not find any error or illegality in Ext.P10 order passed by the Court below warranting interference by the Court under Article 227 of the Constitution of India. The original petition fails and is hence dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/13.07.22 OP(C) NO. 1235 OF 2022 9 ## **APPENDIX OF OP(C) 1235/2022** ## **PETITIONER'S EXHIBITS** - **Ext P1 A TRUE COPY OF THE SETTLEMENT ARRIVED AT BETWEEN THE PETITIONER AND THE RESPONDENT IN THE LOK ADALATH HELD ON 28-05-2015** - **Ext P2 A TRUE COPY OF THE COMMON ORDER PASSED BY THE HON'BLE SUB COURT, PALA IN I.A.209 OF 2016, I.A.NO. 831 OF 2016 I.A.NO. 791 OF 2016 DATED 21-01-2017** - **Ext P3 A TRUE COPY OF THE SALE DEED NO. 937/2017 OF THE SRO MEENACHIL EXECUTED BY THE COURT BELOW IN FAVOR OF THE RESPONDENT DATED 10-08-2017.** **Ext P4 A TRUE COPY OF THE E.C. ISSUED FROM THE SRO, RAMAPURAM, DATED 23-1-2018.** - **Ext P5 A TRUE COPY OF THE FIR IN CRIME NO. 0237 /2020 DATED 06-02-2020 OF THE PALA POLICE STATION** - **Ext P6 A TRUE COPY OF THE ORDER PASSED BY HON'BLE HIGH COURT IN BAIL APPLICATION NO. 4122 OF 2020 DATED 14-09-2020** **Ext P7 A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER AS PER I.A.NO. 1 OF 2020 IN O.S.NO 21 OF 2014 BEFORE THE HON'BLE SUB COURT, PALA DURING SEPTEMBER, 2020** **Ext P8 A TRUE COPY THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT BEFORE THE HON'BLE SUB COURT, PALA.IN I.A.NO. 1 OF 2020 DATED 16-03-2021** **Ext P9 A TRUE COPY OF THE FINAL REPORT SUBMITTED BEFORE THE JFCM COURT AT PALA IN CRIME NO. 37/2020 DATED 30-112020.** **Ext P10 A TRUE COPY OF THE ORDER PASSED IN I.A NO. 1 OF 2020 IN O.S.NO 21 OF 2014 OF THE SUB COURT PALA DATED 03-012022**