V.Sudhirkumar v. Gloria Films and Ignatius Illimoottil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936 OP(C).No. 2235 of 2012 (O) --------------------------(AGAINST THE ORDER IN EA.NO.1171/2011 IN EP.NO.302/2007 IN O.S.NO.237/94 OF ADDL. SUB COURT, IRINJALAKUDA.) PETITIONER(S): ---------------- V.S.SUDHIRKUMAR, AGED 52 YEARS S/O V.K.SREEDHARAN, XII/995, MUDHALIYAR BHAGAM ERNAKULAM DISTRICT KOCHI-682 005. BY ADV. SRI.V.P.REGHURAJ RESPONDENT(S): ----------------- ## 1. GLORIA FILMS, MAHAKAVI BHARATHIYYAR ROAD KOCHI-11 REPRESENTED BY ITS MANAGING PARTNER E.C.ANTO, S/O. CHAKKUNNY, ELANJIPILLY HOUSE ALATHUR VILLAGE, MELADOOR DESOM TRICHUR DISTRICT-680 741. 2. IGNATIUS ILLIMOOTTIL, PROPRIETOR, AMALACHITHRA, VII/414 MAIN ROAD, PALA KOTTAYAM DISTRICT, PIN-686 575. RR-R2 BY ADV. SRI.SHAJI THOMAS RR-R2 BY ADV. SRI.N.NAGARESH R-R2 BY ADV. SRI.BINU PAUL RR-R2 BY ADV. SRI.T.V.VINU RR1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RR1 BY ADV. SRI.T.K.BIJU (MANJINIKARA) THIS OP (CIVIL) HAVING COME BEEN FINALLY HEARD ON 23-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN OP (C) NO.2235 OF 2012 ## PETITIONER(S) EXHIBITS EXHIBIT P1: THE TRUE COPY OF THE DECREE DATED 30-11-1995 IN O.S.NO.237/94 ON THE FILE OF THE SUB COURT, ERNAKULAM. - EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 30.11.2010 OF THIS HON'BLE COURT. - EXHIBIT P3: THE TRUE COPY OF THE DECREE DATED 30.11.2010 OF THIS HON'BLE COURT. EXHIBIT P4: THE TRUE COPY OF THE E.A.NO.1171/2011 DATED 7.12.2011. EXHIBIT P5: THE TRUE COPY OF THE OBJECTION DATED 9.3.2012. - EXHIBIT P6: THE TRUE COPY OF THE ORDER DATED 23.5.2012 IN E.A.NO.1171/2011. RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.S. TO JUDGE. **==> picture [356 x 78] intentionally omitted <==** **==> picture [126 x 14] intentionally omitted <==** Can restitution be ordered de hors Section 144 of the Code of Civil Procedure, 1908 ('the CPC' for short)? This poignant question is put forth by the decree holder in a suit for realisation for money who happens to be the auction purchaser. 2. The petitioner is the plaintiff in O.S.No.237/1994 on the file of the court of the II Addl. Subordinate Judge of Ernakulam and the respondents are the defendants therein. The suit filed for realisation of money due under an agreement relating to production of a cinematographic film was decreed by judgment dated 30.11.1995. The decree obliged the defendants to pay a sum of `.2,01,500/- to the plaintiff with interest on the principal sum of `.2,00,000/- at 12% per annum. The liability to pay such interest was specified to run from the date of suit till the date of realisation and the defendants were also mulcted with costs. The decree was challenged by the second defendant in A.S.No.527/1996 on the file of this Court wherein a conditional order OP (C) 2235/2012 2 of stay of execution was granted. The failure to comply with the conditional order enabled the plaintiff to levy proceedings in execution for realisation of the amount due under the decree. 3. The decree was transmitted to the court of the Subordinate Judge of Irinjalakuda within whose jurisdiction the property of the first defendant was situated. The property extending to 38 cents was attached and brought to sale in E.P.No.302/2007 wherein the plaintiff himself bid the property after setting off the amount due under the decree. The amount due under the decree reckoning interest at 12% per annum was quantified at `.5,73,308/- on 15.9.2008 which was the date of auction. The said amount was permitted to be set off and the balance amount of `.26,792/- was deposited by the plaintiff on 23.9.2008 to make up the total sale price of `.6,00,100/-. It is not in dispute that the sale has since been confirmed by the execution court even though the property is yet to be delivered over to the auction purchaser. The Appeal Suit filed by the second defendant was eventually allowed in part OP (C) 2235/2012 3 varying post decree interest from 12% to 6% and confirming the decree in other aspects. The Appeal Suit was disposed of by judgment dated 30.11.2010 almost 15 years after the date of decree and two years after the date of auction. 4. The modified decree had a telling effect on the amount due under the decree on the date of auction sale and the same was reduced to `.4,37,482/instead of `.5,73,308/- originally reckoned. This would mean that there was a deficit of `.1,35,836/- in the deposit of the sale price by the plaintiff after setting off the amount due under the decree. The plaintiff thereupon filed E.A.No.1171/2011 in E.P.No.302/2007 for permission to pay the differential sum of `.1,35,836/- to complete the sale. The plaintiff maintained that the sale was already confirmed and that the original decree has been affirmed in appeal varying interest only. The defendants on the other hand contended that the sale falls to the ground on account of the slight modification of the decree in appeal. The court below OP (C) 2235/2012 4 has by the order impugned dismissed E.A.No.1171/2011 filed by the plaintiff further directing fresh proceedings for sale in execution. This is impugned by the plaintiff in this Original Petition filed invoking the supervisory jurisdiction contending inter alia that Section 144 of the CPC cannot be applied. 5. I heard Mr.V.P.Raguraj, Advocate on behalf of the petitioner, Mr.Babu Joseph Kuruvathazha, Advocate on behalf of the first respondent and Mr.Shaji Thomas, Advocate on behalf of the second respondent. I had also the able assistance of Mr.K.G.Balasubramanian, Advocate who appeared as Amicus Curiae in this case on my request. 6. I should at the outset state that Section 144 of the CPC will not stricto senso apply as the same can be called in aid only on an application filed by the party entitled to the benefit of restitution. But here is a case where the first defendant had to lose its property in sale in execution of a decree which has been held to be not sustainable at the end. The plaintiff would not have gained an advantage and the first defendant would not have suffered an OP (C) 2235/2012 5 impoverishment but for the original decree. The first defendant asserts that it would have mustered the necessary money to avert the execution sale had the amount due under the decree been correctly reckoned. The first defendant adds that the execution sale took place only because it could not make up the sum of `.5,73,308/- even though it had the sum of `.4,37,482/necessary to discharge the decree debt. The above contention of the first defendant cannot be lightly brushed aside and I will be shirking my duty if the execution sale is not toppled down. 7. The Privy Council has in Alexander Rodger Charles Carnie v. The Comptoir D'Escompte De Paris [(1871) 3 PC 465] observed as follows in regard to the law of restoration pursuant to judicial orders: “....one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression “the act of the Court” is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally OP (C) 2235/2012 6 disposes of the case.” The above decision has been followed in Kavitha Trehan v. Balsara Hygiene Products Ltd. [AIR 1995 SC 441] and South Eastern Coalfields Ltd. v. State of M.P. and others [(2003) 8 SCC 648]. It has been held in Kavitha Trehan's case that Section 144 of the CPC incorporates only a part of the general law of restituion and that the same is not exhaustive. It has been further held therein that the jurisdiction to make restitution is inherent in every Court and can be exercised whenever the justice of the case demands. It is reiterated in South Eastern Coalfields Ltd.'s case that restitution can be had for all kinds of variation of the decree and the following observation is apposite:- “28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the “act of the court” embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court OP (C) 2235/2012 7 being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made.” (emphasis supplied) 8. A Division Bench of this Court in Kitta v. Kuttan and others [ILR 1995 (1) Kerala 15] has held that restitution can be ordered under Section 151 if not under Section 144 of the CPC. The following observations therein throws an insight:- “9. ........ But it is settled law that S.144 is not exhaustive and that it only provides the procedure and the power of restitution is inherent in every court. A right is conferred under S.144 of the Code to get restitution to the position which, the petitioner would have occupied but for the decree or order which has since then OP (C) 2235/2012 8 been varied, modified or reversed. The granting of relief under S.151 is discretionary but such discretion must be exercised fairly and reasonably and not arbitrarily. When S.144 of the Code does not apply to a particular case, it is open to the court to invoke the inherent jurisdiction under S.151 to order restitution. But such invocation can only be if the ends of justice require it or to prevent abuse of the process of court. The court has an inherent power to remedy any wrong committed by it.” There is therefore no fetter for me to invoke the inherent jurisdiction of this Court to order restitution in order to remedy a wrong committed due to an erroneous decree. A serious injury has been caused to the first defendant due to the knocking off its property in an execution sale under a decree which did not reflect the correct amount due. The advantage obtained by the plaintiff on account of a sale in execution of a decree which has since been modified cannot be permitted to be retained. It is only proper that the sale held on 15.9.2008 be set aside and the court below directed to surge ahead with the execution proceedings as per the modified decree. OP (C) 2235/2012 9 9. The court below has not erred in dismissing E.A.No.1171/2011 filed by the plaintiff for permission to pay the balance sale price in order to enable him to retain the property. The first defendant now states that it is prepared to pay the entire amount due under the decree to the plaintiff in order to avert any further execution sale. I leave it to the parties to decide the course of action even while declining jurisdiction under Article 227 of the Constitution of India in the circumstances. The Original Petition is dismissed. No costs. V.CHITAMBARESH, Judge. nj.