Karnataka High Court
Kariyanna vs Isthuri Subbaiahsetty And Ors. on 27 August, 1980
Equivalent citations: AIR1981KANT234, 1981(1)KARLJ66, AIR 1981 KARNATAKA 234, (1981) 1 KANT LJ 66
ORDER
1. In this revision petition, the Petitioner who is the decree-holder has challenged the order dated 9-3-1979 of the Munsiff, Chikballapur, on I, A. No. III filed by the respondents/judgment debtors in Execution Case No. 170 of 1978. In the course of my order, I will refer to the petitioner as the decree-holder and the respondents as the judgment-debtors.
2. The short and simple point that arises for determination in the case is whether an executing court can correct its own mistake or not and if so, whether the circumstances justified the same or not, But, in order to appreciate the same and the validity of the order, I propose to set out only those essential facts in their sequence omitting the innumerable an almost interminable proceedings between the parties, at least from 1947, in a suit instituted by the decree-holder as early as on 3-2-1936.
3. A joint Hindu family consisting of the decree-holder, and his father Gangappa (hereinafter referred to as defendant No. 2) governed by Mitakshara School of Hindu Law inter alia owned 13 items of immovable properties in Gangasandra village, Kasaba Hobli, Gowribidnur Taluk. Defendant No. 2 who was a member of a co-operative society called as "Sagunahalli Lakshminarasimha Cooperative Society" (hereinafter referred to as defendant No. 1) had borrowed various amounts from it and defaulted in payment of the amounts due by him and, therefore, defendant No. 1 filed a dispute before the Deputy Registrar of Co-operative Societies, Kolar Division, and obtained on award/decree against defendant No. 2. In execution of the said award, defendant No. 1 purchased 5 items of immovable properties owned by the joint family and was about to put the other properties also for sale. At that stage i e., on 3-2-1936, the decree-holder who was then a minor, instituted O. S. No. 367 of 1935-36 in the Court of the Munsiff, Doddaballapur, which was then competent to entertain that suit, against defendants I and 2 for a declaration that the award made by the Deputy Registrar and the sales made thereto does not bind his half share and for various other reliefs. Defendant No. 2 did not contest the said suit. But. defendant No. I contested the same. On 2-10-19313 the learned Munsiff decreed the said suit as prayed for by the decree-holder and the decree made in the said suit, which has become final, reads thus:
" ........ It is ordered and decreed hereby as follows:-
(1) That it is hereby declared that (a) the plaintiff is the right owner of half a share in all the immovable and movable properties described in schedules A and B respectively annexed to the plaint; (by the decision passed by the Deputy Registrar of Co-operative Societies, Kolar Division, in case No. 266 of 1933-34 on his file against the second defendant, does not bind the plaintiff; (c) the plaintiff's half a share in the said properties including the crops standing thereon, is not liable to be attached, restrained or sold in execution of the aforesaid decision and as such the sale of the first two items described in schedule is not binding on the plaintiff's share, and (d) the first defendant society represented by the liquidator is not entitled to get attached, restrained or sold any specific -portion of the crops of the said properties including the crops standing thereon, till the second defendant's specific share in the crops of the same is ascertained by general partition by metes and bounds;
(2) That the first defendant society represented by the liquidator is, by an injunction, permanently restrained from executing the Deputy Registrar's decision in the above mentioned case, as against the plaintiff's half share in the said properties and the crops standing thereon, and further restrained in the same manner, from executing the same decision. as against any specific portion of the said properties till the second defendant's share is determined at a general partition by metes and bounds;
And it is further ordered and decreed that the first defendant society as represented by the liquidator do pay to the plaintiff the sum of Rs. 32-4-0 on account of the costs of the suit incurred by the plaintiff as per memorandum annexed herewith.
Given under my hand and the seal of this Court the 2nd day of October, 1939.
Sd/- x x x (B. R. RAMALINGAIAH) Munsiff.
XX XX XX (Schedule A of property in Kannad omitted. -Ed.) On 22-1-1947 one Esturi Sampangiramaiah Setty, husband of judgment-debtor No. 6 and father of Judgment-debtors Nos. I to 5 purchased the aforesaid 13 items of properties from defendant No. 1.
4. On 18-12-1946 the decree-holder sued out of the execution, of the decree obtained by him in Execution Case No. 314 of 1946-47 praying that the Tahsildar, Gowribidanur be appointed as the receiver in respect of the properties detailed in schedule A of the decree. On 10-12-1946, the learned Munsiff ordered the appointment of the Tahsildar, Gowribidanur, as the receiver of the properties. After some correspondence, the narration of which is not necessary for the purpose of this case, the Tahsildar on 18-12-1946 took possession of the aforesaid properties which did not last long in view of the interim order made in R. A. No. 380 of 1947-48 by the District Judge, Bangalore and the final order made in the said appeal which came to be numbered as R. A. No. 3 of 1950-51 before the Subordinate Judge, Civil Station, Bangalore, in which the appointment of the receiver was set aside. On 19-1-1953, the order made by the learned Subordinate Judge in the aforesaid appeal was reversed by the former High Court of Mysore and the order of the learned Munsiff, appointing the Tahsildar was restored, which must have necessarily resulted in the receiver taking possession of the aforesaid properties once again. But, unfortunately that did not happen.
5. After some intermediate proceedings, the narration of which is not necessary, the judgment-debtors on 17-1-1970 instituted O. S. No. 4 of 1970 in the Court of the Civil Judge, Kolar against the decree-holder and defendant No. 1 for a declaration that the decree made in 0. S. No. 367 of 1935-36 is not binding on them and for a permanent injunction restraining them from interfering with their possession of the aforesaid properties and obtained a temporary injunction pending disposal of their said suit. On 20-4-1978 the said suit filed by the judgment-debtors was dismissed by the learned Civil Judge, which was challenged by them before the District Judge, Kolar, in R. A. No. 10 of 1978. On 29-1-1980 the learned District Judge according permission to the judgment-debtors to withdraw the suit with liberty reserved to institute a fresh suit, has disposed of the said appeal and the same has been affirmed by this Court in C. R P. No. 1182 of 1980 decided on 8-4-1980.
As by the time the Civil Judge, Kolar dismissed the aforesaid suit filed by the judgment-debtors, the Court of the Munsiff, Doddaballapur ceased to have territorial jurisdiction over Gowribidanur Taluk and the same had been added to the Court of the Munsiff, Chickballapur. In that view, the decree-holder on 3-6-1978 filed Execution case No. 170 of 1979 in the Court of the Munsiff, Chickballapur again seeking for the appointment of the Tahsildar, Gowribidanur as the receiver of the properties described in the schedule to the said execution petition. The judgment-debtors opposed the said execution filed by the decree-holder. They urged that the decree was in executable as the schedule of the properties annexed to the decree was vague and the portion of the lands to be taken possession of by the receiver cannot be identified and demarcated. Secondly, they urged that their interests in the properties, for which there was no decree, cannot be proceeded with in the said execution.
On 6-2-1979 the learned Munsiff overruling the objections filed by the judgment-debtors appointed the Tahsildar, Gowribidanur, as receiver of the execution petition schedule properties. On 13-2-1979, judgment-debtor No. 1 filed I.A. No. III under Sections 47, 152 and 153 of the Code of Civil Procedure praying to amend the schedule to the execution in conformity with the decree schedule properties and for a consequent direction to the receiver. In his affidavit, in support of I.A. No, III, judgment-debtor No. 1 claimed that the schedule annexed to the execution petition for which the Tahsildar had been appointed as the receiver, was not in conformity with the decree schedule and that in the execution the decree-holder could not lay claim to properties for which there was no decree. He, therefore, claimed that the order dated 6-2-1979 requires to be modified suitably. I.A. No. III filed by judgment-debtor No. 1 was opposed by the decree-holder. He denied the allegations made by judgment-debtor No. I in his affidavit and urged that 1he order made on 6-2-1979 was correct in all respects and did not, therefore, call for modification. On 9-3-1979 the learned Munsiff overruling the objections of the decree holder, has allowed I.A. No. III in these terms:
"I.A. No. III filed by judgment-debtor No. 1 is hereby allowed and the decree-holder is directed to amend the schedule of properties attached to Ex. Case.No. 170 of .1918, so as to be in conformity or in accordance with the decree schedule properties of the decree under execution on or before 12-3-1979 failing which the office is directed to amend the execution petition schedule In conformity with the decree schedule properties of the decree under execution and it is further ordered that a copy of the decree schedule properties be sent to the Receiver directing him to retain only the possession of the decree schedule properties and to handover possession of the remaining properties except the decree schedule properties to the persons from whom he took possession of and to submit a report to this Court in this behalf on or before 30-3-1979."
On 14-3-1979 the decree-holder presented this revision petition challenging the order made by the learned Munsiff on I.A. No. III with an application - I.A. No. I - for stay of the operation of the said order. On 16-3-1979 Swami, J. ordered emergent notice regarding admission and on 9-1-1980 Mahendra, J. ordered the admission of this revision petition. But, at no stage, I.A. No. I has been granted by this Court and, therefore, the order made on 9-3-1979 has been acted upon.
6. Sri M. S. Gopal, learned counsel for the petitioner, has contended that every one of the circumstances pleaded by the judgment-debtors for modification, rectification or correction of the earlier order was misconceived and untenable and, therefore, the learned Munsiff acted illegally and with material irregularity affecting his jurisdiction in allowing I.A. No. III.
7. Sri B. S. Pranesh Rao. learned counsel for the respondents, supported the order of the learned Munsiff.
8. Sri Gopal, in my opinion, rightly did not contend that the executing Court had no jurisdiction and power to correct its own mistakes if it factually found that there was a mistake in. its order. Ss. 152 and 153 of the Code empower a Court to correct its own mistakes in any order made by it. Section 151 of the Code which saves the inherent powers of a Court also authorises a Court to correct its own mistakes for the ends of justice or to prevent abuse of the process of the Court. In this connection it is well to remember the following observations of Jagannatha Shetty, J. in State of Karnataka v. Balekal Krishna Bhat ((1975) 2 Kant LJ 489) in which he affirmed an order made by the trial Court exercising the inherent Powers in setting aside the order of dismissal of a reference made under Section 18 of the Land Acquisition Act:
"If the Court commits a mistake thereby causing injustice to any party before it, the Court would be under legal obligation to correct such mistake so as to render justice to the party. The power conferred by Section 151 is meant for that purpose."
A Judge owes it to himself and the litigant public to correct his own mistake when once the same is brought to his notice and he will be failing in his duty if he does not do so and sticks to his previous order, as if he is infallible. A Judge should approach the same in all humility and rectify the mistake if he is convinced of the same. In this view I.A. No. III filed by judgment-debtor No. 1 was maintainable. If the application is maintainable then the question is whether the circumstances justify the modification, rectification or correction of the order and that is a matter primarily for that Court to decide. When the Court has found that it has committed a mistake and should correct its own order, it is difficult to hold that it has committed an error of jurisdiction, illegality or material irregularity affecting its jurisdiction resulting in failure of justice to the petitioner justifying this Court's interference under Section 115 of the Code. On this short, ground alone this revision petition is liable to be dismissed. But, I do not propose to do so and I, therefore, proceed to examine the merits of the contentions urged before me.
9. Earlier, I have set out the schedule of the properties to which the decree-holder laid his claim and for which a decree has been granted by the Court. In order to appreciate the rival contentions, it is enough to notice item No. 4 of the plaint and decree schedule property which highlights the unsoundness of the claim made by the decree-holder, the infirmity of the order made on 6-2-1979 and the correctness of the order made on 9-3-1979.
10. Sy. No. 278, a dry land, Item No. 4 of the plaint and decree schedule property measures 13 acres 20 guntas. But, the claim of the decree-holder in his plaint for which a decree has been granted is restricted to a half share in an extent of 13 acres of 1 1/2 acres of that survey number. To be more specific and emphatic the decree-holder had not laid any claim much less-the Court had granted a decree to an extent of 12 acres of land in the said survey number. In the earlier Execution Case No. 314 of 1946-47 the decree-holder had rightly described the aforesaid extent of 1 acre 20 guntas only for which he had obtained a decree. But, in the present Execution Case No. 170 of 1978, stated to be a continuation of the earlier Execution Case No. 314 of 1946-47, the decree-holder has described Item No. 4 as hereunder:
"S. No. 278 dry 13 acres 20 guntas, assessed 13/- East-S. No. 279; West-224; North-Kereangala; South S. No. 276."
As regards the other item also, the claim made by the decree-holder is more or less similar to item No. 4. on 6-2-1979, the learned Munsiff, directed the Tahsildar to be the receiver for the entire extent of the survey numbers of the execution petition schedule and not in respect of the restricted, limited and specific extent to which the decree-holder was entitled to. In execution, the decree-holder can execute the decree obtained by him and cannot lay any claim in respect of any property to which he had not laid his claim and obtained a decree thereto. What had been done by the decree-holder in his execution petition was to lay claim for properties for which he had not laid any claim much less there was a decree in his favour. Unfortunately, on 6-2-1979 the learned Munsiff without focusing his attention to this aspect, whoever may be responsible for the same, appointed a receiver to the entire extent of survey numbers and not to the specified extent as he should have done. When that mistake was pointed out, the learned Munsiff, in my opinion, very rightly corrected the same and has issued appropriate directions to be in conformity with the decree. In these circumstances, there is no merit in the contention of Sri Gopal that in allowing I.A. No. III, the learned Munsiff has committed an illegality or irregularity.
11. Sri Gopal urged that in the previous execution the receiver had obtained possession of the entire extent of lands irrespective of the extent to which the decree-holder had obtained a decree and the same having been affirmed by the High Court in S.A. No. 234 of 1950-51, it was not open to the learned Munsiff to reexamine that matter and hold to the contrary.
12. As pointed out by me earlier, the decree-holder had laid his claim" for a specific extent and the Court had granted a decree only for that extent and not for the entire extent of the survey numbers. The order dated 18-12-1946 of the learned Munsiff did not clearly specify that the Tahsildar is appointed either only for the decree schedule properties or the entire extent of properties. On receipt of the warrant appointing him as the receiver, the Tahsildar pointed out his difficulty and requested the Court to clarify the same. But, the Executing Court instead of clarifying the matter and issuing appropriate directions merely stated that he may take possession of the decree schedule properties which as I pointed out earlier did not also last long. Firstly, the High Court cannot be said to have affirmed the order in respect of the entire extent of survey number and there is no basis for the same. Secondly, the mere affirmation of that order does not necessarily mean that that mistake should be ignored and perpetrated for. all times. Lastly, the order made on 6-2-1979 is a fresh and independent order and its validity does not depend on the earlier order itself.
Who is the owner or is in possession of the area or extent to which there was no decree is not a matter that arises for determination in these proceedings. But, what is more important is that the executing Court in executing the decree cannot grant anything more than what the decree authorised the decree-holder. The agony or the helplessness of the decree-holder to realise the fruits of his decree so far or the obdurate attitude of the judgment-debtors to defeat or delay the decree can hardly be a ground to hold that the decree-holder should be allowed to proceed against the other properties of the judgment-debtors or others to which he is not clearly entitled to under the decree. In the order made on 6-2-1979, the executing Court had granted more than what the decree authorised the decree-holder and on being pointed out that mistake it had rightly corrected its own mistake and in so doing, it has not committed any illegality or irregularity calling for this Court's interference.
13. As I apprehend, the claim of the decree-holder in his suit and the decree made thereto is for specific, definite and identifiable properties and not for the entire extent of the survey numbers consisting of larger extents to which he is indirectly claiming. Whatever may be the difficulty in identifying the property which does not appear to be insurmountable, cannot be a justification or a ground to sustain his claim that a receiver should be appointed for the entire extent of the survey number irrespective of the claim of the judgment-debtors or any other person in respect of the area to which he had not laid any claim and obtained a decree. In my opinion, such a claim cannot be countenanced either in an original proceeding or in an execution proceeding by any Court. When the executing Court realising the mistake committed by it had corrected its own mistake, this Court in exercise of its revisional jurisdiction would be wholly unjustified in interfering with such an order.
14. On any view of the matter, this Court's interference is not called for and this revision petition is, therefore, liable to be dismissed.
15. A new Munsiff's Court has now been established at Gowribidanur with effect from 26-5-1980 with jurisdiction over revenue taluk of Gowribidanur and, therefore, the present execution petition has to be transferred to that Court and has hereafter to be dealt by that Court and not by the Munsiff's Court, Chickballapur. As between the parties in relation to the lands, that are the subject matter of the present execution, there is a suit pending in the Civil Judge's Court, Chickballapur and the same has to be dealt with by that Court only, which still continues to have jurisdiction over Gowribidanur taluk. Even though, the execution petition filed by the decree-holder has to be independently considered, it is in the interests of all the parties and justice that the Court of the Civil Judge, Chickballapur deals and disposes of the present execution rather than the new Munsiff's Court at Gowribidanur.
Learned counsel for the parties, in my opinion, rightly and fairly stated that it would be more desirable that this execution petition is withdrawn from the Court of the Munsiff, Chickballapur and transferred to the Court of the Civil Judge, Chickballapur. In these circumstances, exercising the powers conferred on this Court by Section 24 of the Code, I withdraw Execution Case No. 170 of 1978 from the Court of the Munsiff, Chickballapur and transfer the same to the Court of the Civil Judge, Chickballapur for disposal according to law. In the absence of an order of stay, the Tahsildar has given effect to the order dated 13-3-1979. Whether the Tahsildar has correctly implemented the order or not is a matter that has to be independently considered by the executing Court.
16. An execution petition cannot be kept pending for eternity. As it is the proceedings between the parties are pending from 1947 in a suit instituted in the year 1936. Apart from this, a Tahsildar who has to shoulder heavy responsibility in his taluk administration, cannot be continuously asked to be a receiver for all times to come. In these circumstances it is necessary for the learned Civil Judge to deal with the present execution petition in accordance with law and close the same as expeditiously as is possible in the circumstances of the case.
17. In the light of my above discussion, I make the following orders and directions: -
(a) I dismiss this revision petition and affirm the order dated 13-3-1979 of the learned Munsiff, Chickballapur, on 1. A .No. III, in Execution Case No. 170 of 1978,
(b) I withdraw Execution Case No. 170 of 1978 from the Court of the Munsiff, Chickballapur and transfer the same to the file of the -Civil Judge, Chickballapur for disposal without transferring the same to any other Court.
(c) In order to enable the learned Civil Judge, Chickballapur, to dispose of the case as expeditiously as is possible in the circumstances of the case, I direct the parties to appear before him on 10-9 -1980 and take further orders from him on that day for the further progress of the case.
18. In the circumstances of the case, I direct the parties to bear their own costs.
19. Let a copy of this order along with the records of the case be transmitted to the Civil Judge, Chickballapur for disposal on or before 5-9-1980. At the same time, copies of this order be also sent to the Courts of Munsiff, Chickballapur, Doddaballapur and Gowribidanur also for their record.
20. Petition dismissed.