Research › Browse › Judgment

Kerala High Court · body

1950 DIGILAW 92 (KER)

Thoma v. Thoma

1950-10-25

GANGADHARA MENON, KOSHI

body1950
Judgment :- 1. This is an application for review of the judgment, a Division Bench of the Travancore High Court passed on 15.4.1123 in appeal suits Nos. 540 and 558 of 1120. Those appeals were directed against an order of the learned Second Judge of Kottayam setting aside an execution sale under 0.21 R. 87 of the Civil Procedure Code. In disposing of the appeals the High Court directed that in case the plaintiffs, whose failure to pay the defendants their value of improvements occasioned the sale, pay into the lower court certain specified amounts within two months of the decision of the appeals, the order setting aside the sale will stand confined and that otherwise the sale will be upheld. Pursuant to this decision the plaintiffs' assignee the present petitioner applied to the lower court to fix the amount to be deposited and that court passed an order fixing the same at Rs. 2301-chs.15-cash 12. This was after giving credit for an amount of Rs.10694-chs.18-cash 4 the plaintiffs or the petitioner had paid into the execution court on 15.3.1122 while the appeals were pending before the High Court. The petitioner duly deposited the further amount fixed by the court and sought to obtain delivery of the properties which were then in the possession of receivers appointed by the court. That prayer was granted and defendants 13 and 14, to whom the amounts in deposit were due, first applied for payment out to them of those amounts. However, on a subsequent date i.e. on 14.4.1112, they put in a petition to the lower court stating that the plaintiffs had not deposited all the amounts due as per the High Court's decision and that the properties should therefore be redelivered to them after confirmation of the sale. The petitioner soon filed an application to the High Court under S. 116 C.P.C. alleging that in setting out the amount to be deposited the court had by an inadvertent mistake stated the sum in British Indian Currency instead of in the Currency of the State. The petitioner's case was that instead of 10694 Sirkar Rupees the order mistakenly stated it as 10694 British Rupees. The petitioner's case was that instead of 10694 Sirkar Rupees the order mistakenly stated it as 10694 British Rupees. By the time that petition came to be filed one of the learned judges who decided the appeals had retired and a Division Bench composed of the remaining judge and another, dismissed that application on the ground that no question of passing a 'slip order' arose in the case and that the Bench which disposed of the appeals would seem "to have made a deliberate direction to pay into Court a sum of 10694 British Rupees as a condition precedent to the cancellation of the sale". This order was passed on 25.3.1125 and the petition which gave raise to it was C.M.P. No. 1327 dated 23.4.1124. Soon afterwards on 7.4.1125, the petitioner filed the present review petition. The sum and substance of the review petition is that this court should now hold that the words '10694 British Rupees' occurring in the judgment in A.S. Nos. 540 and 558 should be read as '10694 Sirkar Rupees' and that it was that the court really meant. If this is done the deposit made will cover all the due amounts and no penal consequences would hence follow. 2. Defendants 13 and 14, who were the appellants in those cases and now counter-petitioners, strenuously oppose the review. On the face of it the review is long out of time, but along with the review petition the petitioner filed C.M.P. No. 207 of 1950 to condone the delay. It was contended that the facts set out in the affidavit supporting the application for the condonation would not warrant the delay being condoned. The other grounds on which the review was opposed are that the present Bench is incompetent to hear it and that in view of the order passed on 25.3.1124 on C.M.P. No. 1327 it is impossible to hold that there is any error apparent on the face of the judgment or even on the face of the record. 3. The other grounds on which the review was opposed are that the present Bench is incompetent to hear it and that in view of the order passed on 25.3.1124 on C.M.P. No. 1327 it is impossible to hold that there is any error apparent on the face of the judgment or even on the face of the record. 3. We have given the arguments addressed before us from either side our best consideration and we are decidedly of opinion that even if we condone the delay we cannot in the face of the express pronouncement this court made in the order on C.M.P. 1327 find our way to hold that the error is such as to justify our interference in review even on the assumption that the limitations imposed by O. XLV R. 2 do not apply to the High Court. The order dismissing C.M.P. 1327 was written by one of the judges who took part in disposing of the appeals and when that learned judge chose to say that the court made a deliberate direction to pay 10695 British Rupees as a condition precedent to vacate the sale, it is not open to us to say that there is any error apparent on the face of the judgment as required by R. 2 of O. XLV or any error apparent on the face of the record as stated in R.1. It is not for us to consider whether it was within the competence of the learned judges to direct the deposit of any amount as a condition precedent to confirm the lower court's order or whether it was proper to fix for such deposit an amount different from that payable under the decree. Certain extracts which we shall presently quote from the judgment disposing of the appeals clearly show that the learned judges were satisfied that it was a case where the sale had to be annulled even though they were not prepared to agree with some of the reasons the lower court gave for that conclusion. It is legitimate to ask whether the court on its own could have on that finding passed the conditional order it made, but we should treat it as an instance where the court with the tacit assent of the parties before it adopted a procedure different from the ordinary'cursus' curae with a view to do substantial justice between the parties. It is legitimate to ask whether the court on its own could have on that finding passed the conditional order it made, but we should treat it as an instance where the court with the tacit assent of the parties before it adopted a procedure different from the ordinary'cursus' curae with a view to do substantial justice between the parties. Assuming we have jurisdiction to entertain the review, we cannot therefore on the merits find our way to afford relief to the petitioner by way of review and substitute the words "Sirkar Rupees" in place where the expression "British Rupees" occurs in the judgment to be reviewed. 4. This does not however mean we are powerless to relieve the petitioner of the penal consequences arising from his failure to comply fully with the requirements of the judgment to deposit all the amounts mentioned therein. Though we cannot agree that the court meant to state 10694 Sirkar Rupees while it mentioned 10694 British Rupees, reading the judgment as a whole we cannot help feeling that this is a case where the counter-petitioners are trying to take undue advantage of a situation brought about by the judgment passed in the appeals. The court, both here and below, and the parties, proceeded as if the deposit made on 15.3.1122 was in terms of British Indian Currency and that the value awarded for improvements was also in terms of the same. The deficit now found due in the deposit subsequently made arose on account of that mistake. It is bootless to consider how the mistake arose, but it is impossible to exempt the counter-petitioners from all blame. The decision was given in open court in their presence, or in the presence of their counsel, immediately after the arguments were concluded. No litigant before a court can be permitted to benefit by a mistake made by the court nor can anybody be made to suffer for the court's mistake. No act of the court can or should hurt any person. No litigant before a court can be permitted to benefit by a mistake made by the court nor can anybody be made to suffer for the court's mistake. No act of the court can or should hurt any person. Every Court has inherent jurisdiction vested in it to ensure that its order carries into effect the decision at which it arrives and we think it only just and equitable that in the exercise of that inherent jurisdiction we should allow the petitioner to enjoy the benefit of the High Court's decision by giving him such further time as is found necessary to make good the deficit amount without at the same time allowing the opposite side to suffer any undue detriment. The counter-petitioners have to be compensated for the loss they sustained on account of all these delays and that has to be and will be done. 5. In taking the above decision we have not omitted to consider certain facts brought to our notice by the learned counsel for the counter-petitioners. It was said that the present petitioner is only an assignee who purchased the rights of the original plaintiffs as a speculative venture and that the case has behind it a long history of cantankerous litigation. These are in our opinion irrelevant considerations and if we may say so without disrespect, the judgment contained the germs for the subsequent confusion. The fact the petitioner has not expressly sought to invoke the inherent jurisdiction of the court is in our opinion no sufficient reason for us not to exercise it or to wait till the lower court passes its orders on the application the counter-petitioners filed on 14.4.1124. Real and substantial justice for whose administration alone courts exist demands our interference at this stage in the manner we propose to do. 6. Ordinarily what a court does when it finds that an execution sale cannot be confirmed is to pass an order to that effect. Here however the court went out of its way in the exercise of what may be called its equitable jurisdiction with a view to end a long pending litigation. The following extracts from the judgment would show that on the merits the present petitioner was entitled to succeed and normally he should have got an unconditional order in his favour. Here however the court went out of its way in the exercise of what may be called its equitable jurisdiction with a view to end a long pending litigation. The following extracts from the judgment would show that on the merits the present petitioner was entitled to succeed and normally he should have got an unconditional order in his favour. No doubt when the court passed a conditional order parties are bound by it, but if in carrying out the conditions imposed a difficulty or a bona fide mistake arises on account of the terms of the decision itself it is the court's duty to do what is just and necessary to give effect to its true intention. All that the court wanted was to have a long pending dispute settled within a reasonable time is clear from the terms of the decision itself. No particular sanctity would seem to have been attached to the period of two months. The portions of the judgment relevant for our present purpose are these: Para 2 "As we however, are of the view that the properties have been sold for a grossly inadequate price, it is unnecessary for us to deal with other matters dealt with by the lower court for setting aside the sale." In the concluding portion of para 3 it is seen stated: "We are, therefore, satisfied that this is a case where the plots in question have been grossly undervalued and sold for an inadequate price. The sale has, therefore to be set aside on the above ground. At the same time we find that defendants 13 and 14 ceased to have possession of these plots from Chingom 1104 and they got possession only when they were appointed receivers on 19.6.1106, and that from 14.4.1109. The plaintiffs-respondents did at no time offer to deposit the value of improvements. Taking these matters into consideration, we think that this is a case where the plaintiffs have to be directed to deposit interest at 4% on Br. Rs. 10694, the amount which the plaintiffs were directed to pay to defendants 13 and 14 under the decree of this court, between 1.1.1104 and 14.4.1109. Sometime after 14.4.1109, defendants 13 and 14 ceased to be receivers and now the properties are in the possession of other receivers appointed by the lower court. Rs. 10694, the amount which the plaintiffs were directed to pay to defendants 13 and 14 under the decree of this court, between 1.1.1104 and 14.4.1109. Sometime after 14.4.1109, defendants 13 and 14 ceased to be receivers and now the properties are in the possession of other receivers appointed by the lower court. So far as the mesne profits which have been collected by the other receivers are concerned, defendants 13 and 14 will be at liberty to recover these mesne profits from those receivers through the lower court. But the mesne profits in the hands of the receivers, accruing after the date of which the plaintiffs make the deposit as directed by this judgment, will be collected by the plaintiffs or their assignees." "4. In the result, we allow the appeals in the following manner:- The order of the lower court setting aside the auction sale will stand confirmed on the plaintiffs or their assignees depositing in the lower court, within two months from this date, the sum of Br. Rs. 10694, with interest thereon at 4% per annum from 11.1.1104 to 14.4.1109. It is represented that already the plaintiffs have deposited in the lower court the sum of Rs. 10694. The plaintiffs or their assignees will deposit the balance within the time as stipulated above. In the event of the plaintiffs or their assignees not depositing the amount as per the direction in this judgment, the auction sale will stand confirmed, and the order of the lower court set aside. Defendants 13 and 14 will be allowed to withdraw the amounts deposited in the proceedings, but they will have such right only until the date on which the plaintiffs or their assignees make the deposit in the lower court as per our directions. In the circumstances of the case we direct the parties to suffer their respective costs. Records will be sent down in one week. The receivers will be discharged and the property will be directed to be restored to the party who will be entitled to it as per this judgment." The last paragraph clearly shows that the amount already deposited was the amount on which it was said the counter-petitioners should obtain interest for the period specified, but the earlier portion in two places distinctly says that amount to be Br. Rs. 10694. Rs. 10694. The present deficit has arisen on account of the fact that all concerned took it for granted that the deposit made was in terms of British Indian Currency while in fact the deposit was only S. Rs. 10694-chs. 18-cash 4. At the time the judgment was delivered the counter-petitioners did not invite the attention of the court to the error and when the court's decision proceeds on that basis it is in our opinion idle to blame on side alone for it or to visit that side with the consequences arising therefrom. The question is not through whose representation the court happened to commit the mistake; once the mistake has crept into the court's order the mistake is of the court. Rights and obligations arising out of that order have to be adjusted on the basis that the error is of the Court. The source of the mistake is immaterial. See A.I.R. 1950 F.C. 131, at 133. Viewed in this light we consider it to be just and proper that the petitioner should be given time to make good the deficit before the penal consequences arising out of the decision can be made to visit on him. 7. A long line of decisions of the Cochin High Court encourages us to take this view. Among the cases we have in mind reference may be made to 13 Cochin Law Reports 134; 21 Cochin Law Reports 72; 34 Cochin Law Reports 753 and 36 Cochin Law Reports 672. What Achutha Menon, J. said in 21 Cochin Law Reports 72 may with profit be quoted here: "Even if the deposit was not made within time we are of opinion that the ends of justice require that the time should be extended in the exercise of our inherent powers. The recent tendency is very strongly in favour of the exercise of inherent powers wherever and whenever it is necessary to do justice provided that such exercise is not prohibited by any provision in the existing codified law . Further, it appears from the order of this court that this court was of opinion that the sale was irregular and ought to be set aside. The circumstances referred to above make this a preeminently fit case for the exercise of our inherent powers". Further, it appears from the order of this court that this court was of opinion that the sale was irregular and ought to be set aside. The circumstances referred to above make this a preeminently fit case for the exercise of our inherent powers". As the result of the foregoing discussion and in the exercise of the inherent powers vested in us we extend the period of two months fixed by the decision in A.S. 540 and 558 of 1120 to pay the amounts specified therein as stated herein below and direct as follows: The lower court will ascertain what amounts were due by the petitioner when the two months' period fixed by the decision in the appeals expired on the basis that 10694 British Rupees and interest thereon at 4 per cent per annum from 1.1.1104 to 14.4.1109 had to be paid by him then and call upon him to pay the balance due within one month of the order fixing the same. The petition defendants 13 and 14 filed before that Court on 14.4.1124 referred to earlier and now pending before it will be disposed of in the light of this order. Earlier in this order we had mentioned that the counter-petitioners should not be made to suffer on account of the delay and confusion following the decision of the appeals. That decision gave them compensation for their loss of possession of the properties prematurely by providing interest on the amount representing the value of improvements for a certain period and by directing them to receive the mesne profits the receivers had collected during the subsequent years. The petitioner would seem to have taken possession of the properties from the receivers as per an order of the lower court dated 9.4.1124 and the direction to receive mesne profits cannot therefore have operation for any subsequent period. All the amounts the petitioner so far paid remains idle in court and to hold the scales even we think that from the date of the petitioner taking possession of the properties from the receivers until he deposits the further amounts payable by him the petitioner should pay the counter-petitioners interest on the amount of 10694 British Rupees at 4 per cent per annum by way of compensation. Such amounts also he should pay within the one month specified above or within such further time as the lower court may choose to fix. 8. In case the further amounts found due by the original decision as explained by us are not paid within the time now prescribed the consequences which that decision envisages shall follow. In case the petitioner does not pay within the time specified by us or within such time as the lower court may hereafter fix the additional compensation we have awarded to the counter-petitioners they will be entitled to realise the same from him in execution. The review petition will stand disposed of as above. In the circumstances of the case we make no order as to costs. In view of our decision there is no need for C.M.P. 237 and that will stand dismissed.