Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 154 (BOM)

Arun Sazu Sinai Nadkarni v. Peregrino Carvalho

2011-02-08

A.P.LAVANDE

body2011
JUDGMENT : With the consent of the learned Counsel for the parties, the matter is taken up for final disposal. Heard learned Counsel for the parties. 2. By this petition under Article 227 of the Constitution of India, the petitioners challenge the orders dated 22nd August, 2008 and order dated 17th September, 2010 passed by the Civil Judge, Junior Division, Sanguem in Regular Civil Suit no.11/2006 and Execution Application No.7/2009 respectively. 3. Briefly, the facts relevant for disposal of the present petition are as under: The petitioners filed Regular Civil Suit No.11/2006 in the Court of Civil Judge, Junior Division, Sanguem against the respondents and three others seeking permanent injunction and other reliefs in respect of the part of the property bearing Survey No.33/21. The respondents were defendant nos.2 and 3 in the said suit. During pendency of the suit, parties arrived at settlement whereby the petitioners agreed to sell to the respondents herein plot P admeasuring 2785 square metres at the rate of Rs.180/- per square meter, more particularly described in the agreement of sale entered on the same day and shown in the plan annexed thereto and duly signed by the parties. Along with the consent terms, an agreement to sale was also annexed which mentioned that the petitioners had agreed to sell an area of 2385 square metres as shown in the plan and marked as plot P for consideration of Rs.4,29,300/- at the rate of Rs.180/-per square metre. The trial Court disposed of the suit in terms of the consent terms filed and the consent decree dated 29th September, 2006 was drawn by the trial Court. 4. Thereafter, on 27th March, 2007, the petitioners by registered sale deed sold plot P admeasuring 2385 square metres to the respondents at the rate of Rs.180/- per square metre. The said plot was marked as plot P in the plan annexed to the sale deed. According to the petitioners, they realised that although they are agreed to sell an area of 2385 square metres, in the consent terms instead of an area of 2385 square metres, an area of 2785 square metres was mentioned in the consent terms. The petitioners, therefore, filed an application dated 2nd November, 2007 for correction of the consent decree which was opposed by the respondents. The petitioners, therefore, filed an application dated 2nd November, 2007 for correction of the consent decree which was opposed by the respondents. By order dated 22nd August, 2008, the learned Civil Judge, Junior Division, Sanguem, dismissed the application on the ground that the respondents/ defendants had disputed that there was mistake or accidental slip or error. The learned Judge placed reliance upon the judgment of Division Bench of this Court in the case of Valji Mavji Patel Vs. State of Maharashtra and others; 2008(4) All MR 580. 5. The respondents thereafter filed Execution Application no.7/2009 against the petitioners seeking execution of sale deed for the remaining area of 400 square metres. The petitioners filed an application under Section 47 of C.P.C. giving therein the various details and sought enquiry to ascertain whether the decree holders are entitled to an area of 2785 square metres or 2385 square metres. The said application was opposed by the respondents. The trial Court by order dated 17th September, 2010 dismissed the application filed by the petitioners under Section 47 of C.P.C. on the following grounds : (i) The consent terms had clearly mentioned that an area of plot P was 2785 square metres. (ii) The application filed by the petitioners under Section 152 of C.P.C. was dismissed holding that the consent decree can be only varied with the consent of the parties and not by the Court. (iii) The father of the petitioners-judgment debtors had lodged complaint to the police on 17th June, 2007 stating therein that the area mentioned in the decree was 2785 square metres. Thus, the trial Court held that since there was consent decree, the same could not be challenged by the judgment debtors and the application was liable to be dismissed. 6. Mr. Lotlikar, learned Senior Counsel appearing for the petitioners submitted that the trial Court ought not to have dismissed the application under Section 152 of C.P.C. firstly on the ground that since the decree holders did not agree that there was a mistake or error, the application was not maintainable and secondly on the basis of the judgment in the case of Valji Mavji Patel (supra). Mr. Mr. Lotlikar, learned Counsel further submitted that an application filed under Section 152 of C.P.C. was very much maintainable and the trial Court ought to have allowed the application filed by the petitioners since there was mistake or error which was evident from the fact that in terms of the agreement as well as sale deed plot P admeasuring 2385 square metres was sold which clearly discloses that an area of 2785 square metres mentioned in the decree was by mistake and actually what was intended to be sold to the decree holders was only an area admeasuring 2385 square metres and not 2785 square metres. He further submitted that the writ petition filed challenging the order dated 22nd August, 2008 was not beyond three years from the date of order and, therefore, there are no gross delay and laches on the part of the petitioners. Mr. Lotlikar further submitted that the Executing Court ought to have held enquiry to find out whether what was intended to be conveyed was an area of 2385 square metres or 2785 square metres and mere fact that there is consent decree, would not preclude the Executing Court from holding an enquiry having regard to the fact that in the agreement of sale as well as in the sale deed, the area of plot P was mentioned as 2385 square metres. In support of his submissions, Mr. Lotlikar placed reliance upon the following judgments : (i) Karimunnisa Begum Vs. Kaji Mir Jamaluddin Valade Mir Masum Alikhan and others; AIR 1937 Bombay 45. (ii) State of M.P. V. Bhailal Bhai; AIR 1964 SC 1006 . (iii) Shiv Dass V. Union of India and Others; (2007)9 SCC 274 . 7. Per contra, Mr. Rodrigues, learned Counsel for the respondents submitted that the petitioners are guilty of suppressing certain relevant documents which were required to be placed before this Court, have not been placed and, therefore, this is not a fit case for this Court to exercise supervisionary jurisdiction under Article 227 of the Constitution of India. He further submitted that in any case, the Executing Court was justified in passing the impugned order and the reasons given by the Executing Court for dismissing the application filed by the petitioners under Section 47 of C.P.C., cannot be faulted. In so far as the order dated 22nd August, 2008 is concerned, Mr. He further submitted that in any case, the Executing Court was justified in passing the impugned order and the reasons given by the Executing Court for dismissing the application filed by the petitioners under Section 47 of C.P.C., cannot be faulted. In so far as the order dated 22nd August, 2008 is concerned, Mr. Rodrigues submitted that the learned trial Court was justified in placing reliance upon the Division Bench judgment in the case of Valji Mavji Patel (supra). 8. The matter was fixed for judgment on 29th January, 2011. On that day, Mr. Rodrigues sought leave and made submission regarding the maintainability of the writ petition against the order dated 22nd August, 2008. Mr. Rodrigues submitted that against the order dated 22nd August, 2008, revision is clearly maintainable and, therefore, this Court should not exercise supervisionary jurisdiction under Article 227 of the Constitution of India since the petition has been filed almost after more than 2 years from passing of the orders. In support of his submission, Mr. Rodrigues relied upon the following judgment: (i) Valji Mavji Patel Vs. State of Maharashtra through Housing and Special Assistance Department and Others; 2008(4) All MR 580. 9. In so far as the order dated 22nd August, 2008 is concerned, Mr. Lotlikar submitted that by order dated 22nd August, 2008, the rights of the parties were not decided and as such, the revision is not maintainable against the said order. He further argued that if revision under Section 115 of C.P.C. is maintainable against the said order, the same would not disentitle this Court to exercise jurisdiction under Article 227 of the Constitution of India. 10. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 11. In so far the order dated 22nd August, 2008 passed by the trial Court is concerned, by the said order, the trial Court dismissed the application filed by the petitioners to correct the error and/ or mistake in the consent decree and refused to substitute the area 2385 square metres in place of 2785 square metres. In my opinion, against the said order, revision under Section 115 of C.P.C. would be maintainable. In my opinion, against the said order, revision under Section 115 of C.P.C. would be maintainable. In terms of proviso to Section 115 of C.P.C., the Court is not entitled to vary or reverse any order made deciding the issue in the course of the suit or other proceedings except where the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. 12. If the trial Court were to allow the said application filed under Section 152 of C.P.C., the proceedings taken by the petitioners for correction of the consent decree would have come to an end. Consequently, the Execution Application filed by the petitioners would not be also maintainable. Therefore, in my considered opinion, proviso to Section 115 of C.P.C. is clearly attracted in the present case and, therefore, against the impugned order dated 22nd August, 2008 the appropriate remedy for the petitioners would be to file revision application under Section 115 of C.P.C. In so far as the argument of Mr. Lotlikar that by the said order the rights of the parties have not been decided and, therefore, revision is not maintainable is concerned, I find no merit absolutely in as much as Section 115 of C.P.C. does not specifically provide that revision is maintainable only if the rights of the parties are finally decided. What is required in terms of proviso to Section 115 of C.P.C. is that the High Court should not vary or reverse the order in the course of the suit or other proceeding except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. Therefore, having regard to Section 115 as amended, I find merit in the submission of Mr. Rodrigues that the appropriate remedy for the petitioners against the order dated 22nd August, 2008 would be to file revision. 13. In so far as the argument of Mr. Therefore, having regard to Section 115 as amended, I find merit in the submission of Mr. Rodrigues that the appropriate remedy for the petitioners against the order dated 22nd August, 2008 would be to file revision. 13. In so far as the argument of Mr. Lotlikar that availability of remedy of revision is no bar to entertain the petition under Article 227 is concerned, I also find no merit in as much as since the petitioners have not availed of the remedy of revision within the period prescribed and having regard to the availability of the alternate remedy, I am of the considered opinion that this is not a fit case in which this Court should exercise supervisionary jurisdiction against the impugned order dated 22nd August, 2008. 14. In view of the finding given above, it is not necessary for me to deal with authorities cited by Mr. Lotlikar which are in relation to the order dated 22nd August, 2008. 15. However, in so far as the order dated 17th September, 2010 is concerned, I am of the opinion that the matter requires consideration. Hence Rule. 16. In so far as the argument of Mr. Rodrigues that the petition is liable to dismissed on the ground of suppression of facts is concerned, I do not find any merit in view of the order I propose to pass. 17. By the impugned order dated 17th September, 2010, the Executing Court has held that since by the consent decree, petitioners have agreed to sell plot P admeasuring 2785 square metres, it was not necessary to hold enquiry in the absence of any allegation of misrepresentation or fraud at the time of filing of the consent terms. The Executing Court also placed reliance upon the Division Bench judgment in case of Valji Mavji Patel (supra) and held that the consent decree can be only varied with the consent of the parties and not by the Court. The Executing Court also placed reliance upon the complaint filed by the father of the judgment debtors and held that there was no scope for enquiry as regards the area. 18. In my considered opinion, all the reasons given by the Executing Court for not holding the enquiry are absolutely untenable in law. The Executing Court also placed reliance upon the complaint filed by the father of the judgment debtors and held that there was no scope for enquiry as regards the area. 18. In my considered opinion, all the reasons given by the Executing Court for not holding the enquiry are absolutely untenable in law. In view of the fact that in the consent decree although there is reference to plot P admeasuring 2785 square metres, the agreement to sale which also formed the part of the consent decree disclosed that plot P was admeasuring 2385 square metres. Moreover, by sale deed dated 27th March, 2007, plot P admeasuring 2385 square metres was sold by the judgment debtors to the decree holders. This being the position, the Executing Court was bound to hold enquiry as to whether the intention of the parties in the suit was to convey area of 2385 square metres or 2785 square metres as contended by the judgment debtors and decree holders respectively. Merely because the application under Section 152 of C.P.C. was dismissed, the Executing Court could not have refused to hold an enquiry in as much as the application under Section 152 of C.P.C. was dismissed on the ground that the application under Section 152 of C.P.C. could be granted only with the consent of the other party. Since I have held that proper remedy against the order dated 22nd August, 2008 is by way of revision, I do not propose to deal with the merits of the reasons given in the said order while dismissing the said application. Be that as it may, the reliance placed by the Executing Court on the Division Bench Judgment of this Court in the case of Valji Mavji Patel (supra) is totally misplaced. In the said case, what the Division Bench held that the consent decree only can be varied on the ground that there was misrepresentation or fraud at the time of filing consent terms. The Division Bench was not dealing with the scope of Section 152 of C.P.C. while deciding the said case and, therefore, the ratio of the said judgment is absolutely not applicable in the present case. The Division Bench was not dealing with the scope of Section 152 of C.P.C. while deciding the said case and, therefore, the ratio of the said judgment is absolutely not applicable in the present case. Similarly mere fact that father of the judgment debtors in his police complaint dated 17th June, 2007 had mentioned that the area shown in the decree which was agreed to be sold in the decree was 2785 square metres, the same by itself was not sufficient to dismiss the application filed under Section 47 of C.P.C. without holding enquiry. The Executing Court was bound to hold an enquiry to ascertain as to what was intended by the parties while entering into compromise and filing the consent terms. In other words, the Executing Court is bound to hold an enquiry to ascertain whether the plaintiffs/ judgment debtors intended to sell plot P admeasuring 2385 square metres or 2785 square metres having regard to the fact that subsequently, the sale deed was executed in respect of the plot P admeasuring 2385 square metres. Therefore, in my opinion, the grounds on which the Executing Court has dismissed the application under Section 47 of C.P.C. are patently unsustainable in law. Having regard to the facts and circumstances of the case, the Executing Court was obliged to hold an enquiry under Section 47 of C.P.C. as sought by the petitioners. Therefore, the impugned order dated 17th September, 2010 passed by the Civil Judge, Junior Division, Sanguem in Execution Application No.7/2009 is liable to set aside. 19. In the result, therefore, the impugned order dated 17th September, 2010 passed by the learned Judge in Execution Application No.7/2009 is quashed and set aside. The Executing Court is directed to hold enquiry and dispose of the application under Section 47 of C.P.C. and the Execution Application No.7/2009 filed by the respondents in accordance with law.