Karnataka High Court
Mrs Devika Chittiappa Rao vs Nil on 15 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2397
Author: S.G.Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.15264 OF 2018 (GM-CPC)
BETWEEN:
MRS. DEVIKA CHITTIAPPA RAO
W/O LATE JAYARAMA RAGUNATHA RAO
AGED ABOUT 63 YEARS
R/AT 'THE HOUSE'
NO.57/59 (OLD NO.29/30)
VIVIANI ROAD, RICHARDS TOWN
BENGALURU-560 005
... PETITIONER
(BY SRI.MANMOHAN P N, ADV.]
AND:
NIL
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 23.11.2017 PASSED IN MISC. PETITON NO.108
OF 2017 PASSED BY THE COURT OF LXVI ADDL. CITY CIVIL
AND SESSION JUDGE AT BENGALURU AT ANNEX-P AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 09.11.2018 COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
The petitioner is before this Court under Article 227 of the Constitution of India praying to set aside the order dated 23-11-2017 passed in Misc. Petition No.108/2017 and the order dated 07-03-2017 passed on I.A. filed under Section 151 of CPC in Misc. Petition No.108/2017 on the file of the 66th Additional City Civil and Sessions Judge, Bangalore and for a direction to consider the application for correction of the Succession Certificate filed by the petitioner.
2. The petitioner filed P&SC No.284/2016 under Section 372 of the Indian Succession Act, 1925 praying for issuance of Succession Certificate in respect of schedule properties in favour of the petitioner. The trial Court, by judgment dated 07-01-2017 allowed the petition and ordered to issue Succession Certificate to the petitioner in respect of all the suit schedule properties except 'C' schedule property since the suit is pending in O.S.No.2673/2016. 'C' schedule property consists of Fixed Deposits which are as follows: 3
SCHEDULE 'C' PROPERTY SL. Principal Date of A/c No. Term No. amount Maturity
1. 33320116031 Rs.10 lakhs 2 years 23.09.2017
2. 33320119611 Rs.10 lakhs 2 years 23.09.2017
3. 33320076437 Rs.55 lakhs 2 years 23.09.2017
4. 33320122715 Rs.5 lakhs 2 years 23.09.2017
3. The P&SC No.284/2016 was on 06-08-2016 and few days prior to filing of P & SC, the petitioner had filed O.S.No.2673/2016 before the City Civil Court at Bangalore praying for a judgment and decree of permanent injunction restraining the first defendant i.e., State Bank of India, from releasing the amounts deposited in the suit schedule property in favour of defendant No.2 i.e., Dr.Nanda S. The schedule property shown in the suit is the same schedule shown as 'C' schedule property in P & SC 284/2016.
4. Aggrieved by the portion of the judgment dated 07-01-2017 passed in P&SC No.284/2016 by which, Succession Certificate is denied in respect of 'C' Schedule property, the petitioner filed Misc. Petition No.108/2017 4 under Order 47 Rule 1 read with Section 114 of Code of Civil Procedure. The trial Court, by order dated 16-02-2017 allowed the petition filed under Order 47 Rule 1 read with Section 114 of CPC and ordered to issue Succession Certificate to the petitioner as prayed in the petition subject to condition that if the defendant No.2 in O.S.No.2673/2016 succeeds in the case, the petitioner has to indemnify. The petitioner was issued with Succession Certificate on 18-03-
2017 excluding the 'C' schedule property. Therefore, the petitioner on 31-08-2017 filed application under Section 151 of CPC in P&SC No.284/2016 to issue Succession Certificate including 'C' schedule property i.e., Fixed Deposits. In the meanwhile, on 31-03-2017, Dr.Nanda S., who is second defendant in O.S.NO.2673/2016 filed by the petitioner herein, filed P&SC 126/2017 which was converted to suit as O.S.No.6455/2017 praying the Court to revoke Succession Certificate issued to the petitioner herein under judgment dated 07-01-2017 in P&SC No.284/2016 and order dated 16-02-2017 passed in Misc. Petition No.108/2017. 5
5. The trial Court, by its order dated 23-11-2017 passed order staying the operation and execution of orders in Misc. Petition No.108/2017 till disposal of O.S.No.2673/2016 and O.S.No.6455/2017 on the ground that Dr.Nanda plaintiff in O.S.No.6455/2017 is the nominee in respect of 'C' schedule property i.e., Fixed Deposits and if orders are made to issue Succession Certificate including 'C' schedule property, it would result in multiplicity of proceedings. Aggrieved by this order, the petitioner filed writ petition before this Court in W.P.No.56453/2017 and this Court by order dated 23-01-2018 dismissed the writ petition as withdrawn with liberty to approach the Court to recall the order dated 23-11-2017. Thereafter the petitioner filed I.A. under Section 151 of CPC to recall the order dated 23-11-2017 contending that the said order is in utter violation of the principles of natural justice and on disposal of review petition, by order dated 16-02-2017, the Court has become functus-officio and has no power to pass any orders. The trial Court, by order dated 07-03-2018 rejected the application filed by the 6 petitioner under Section 151 of CPC to recall order dated 23-11-2017, which is impugned in this writ petition.
6. Heard the learned counsel for the petitioner and perused the records.
7. Learned counsel for the petitioner submits that one J.R.Rao executed Will dated 03-10-1981 bequeathing the properties in favour of the petitioner herein including the Fixed Deposits which is the 'C' schedule property in P&SC 284/2016. He further submits that as the State Bank of India where the deposits are lying has refused to release FDs in favour of the petitioner on the ground that one Dr.Nanda S., is nominee of 'C' schedule, the petitioner filed O.S.No.2673/2016 making Dr.Nanda S., as second defendant to restrain the Bank from releasing the deposit amount in favour of defendant No.2 and to release the amounts in deposit to the petitioner. Learned counsel for the petitioner contends that once the trial Court allowed the review by its order dated 16-02-2017 directing issuance of Succession 7 Certificate with a condition to indemnify Dr.Nanda S., in case she succeeds in her suit, the Court has no power to pass any further order as it becomes functus-officio. Once the judgment is signed at the time of pronouncing, it shall not afterwards be altered or added except on application under Section 152 of CPC or on review. In support of his contention that the Court has become functus-officio, learned counsel relies upon decision of the Hon'ble Supreme Court reported in (2008)8 SCC 92 in the case of STATE BANK OF INDIA AND OTHERS v/s S.N.GOYAL. Paragraphs 26 to 28 of the judgment read as follows:
"26. It is true that once an authority exercising quasi- judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage an authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advance Law Lexicon (3rd Edn., Vol.2, pp.1946-47) gives the following illustrative definition of the term "functus officio":8
"Thus a judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision."
27. Black's Law Dictionary (6th Edn., p673) gives its meaning as follows :
"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority".
28. We may first refer to the position with reference to civil courts. Order 20 of the Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this behalf]. The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may 9 be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review). The position is different with reference to quasi-judicial authorities. While some quasi-judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi-judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi- judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or 10 communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functus officio. The order dated 18-1-1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the appointing authority became functus officio when it signed the note dated 18-1-1995."
Further, learned counsel for the petitioner submits that the Court could not have exercised power under Section 151 of CPC to stay the operation of the order passed in C.Misc.108/2017.
8. The petitioner filed P&SC No.284/2016 on the strength of the Will dated 03-10-1981 executed by one Jayaram Ragunath Rao (J.R.Rao) being his wife, having married in the year 1974. In P & SC, the petitioner had sought for issuance of Succession Certificate in respect of 'A' to 'H' schedule properties, wherein 'C' schedule property includes Fixed Deposits of Late J.R.Rao.
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9. Admittedly, nominee to the Fixed Deposits is one Dr.Nanda S. The petitioner herein prior to filing of the P&SC No.284/2016 had filed O.S.No.2673/2006 against State Bank of India and Dr.Nanda S, seeking relief of permanent injunction restraining the first defendant/Bank from releasing the amounts deposited in the 'C' Schedule in favour of Dr.Nanda S., and for mandatory injunction to release the amounts in deposit in favour of the plaintiff. Even though, the petitioner had the knowledge that Dr.Nanda S., is nominee to the Fixed Deposits, she had not made Dr.Nanda S., as party to P&SC No.284/2016. The trial Court rightly by its judgment dated 07-01-2017 allowed P&SC No.284/2016 and directed to issue Succession Certificate to the petitioner in respect of all the suit schedule properties except 'C' schedule property i.e., Fixed Deposits. The petitioner filed review in Misc.Petition No.108/2017 insofar as denial of Succession Certificate in respect of 'C' schedule property in P&SC No.284/2016. The trial Court, however, without assigning any reason allowed the Misc. petition by order 12 dated 16.02.2017 and directed to issue Succession Certificate subject to the condition that if the defendant in O.S.No.2673/2016 i.e., Dr.Nanda succeeds, the petitioner has to indemnify. As the Succession Certificate dated 18-03-2017 was issued without including the 'C' schedule property, the petitioner herein filed application under Section 151 of CPC on 31-08-2017.
10. It is noticed from the writ papers that Dr.Nanda S., filed P&SC No.126/2017 on 31-03-2017 which was converted as O.S.No.6455/2017 to revoke Succession Certificate issued to the petitioner herein pursuant to the judgment dated 07-01-2017 in P&SC No.284/2016 and order dated 16-02-2017 in Misc.Petition No.108/2017. The petitioner had filed I.A. under Section 151 of CPC to correct the Succession Certificate issued on 18-03-2017 and to issue Succession Certificate including 'C' schedule property i.e., Fixed Deposits. The trial Court, noticing the fact that the filing of the petition/suit by Dr.Nanda S., for revocation of 13 Succession Certificate, in exercise of its power under Section 151 of CPC stayed the execution of orders passed in C.Misc. No.108/2017 till disposal of O.S.No.2673/2017 and O.S.No.6455/2017. It is an admitted fact that nomination in respect of the 'C' schedule Fixed deposits is in favour of Dr.Nanda S. Further, it is on record that the petitioner has filed suit against State Bank of India and Dr.Nanda S., to restrain release of Fixed Deposit amounts in favour of Dr.Nanda S., in O.S.No.2673/2016 and Dr.Nanda S., has filed O.S.No.6455/2016 for revocation of Succession Certificate issued in favour of the petitioner herein. In these circumstances, to avoid multiplicity of proceedings and to do complete justice, the trial Court has rightly stayed the execution of the order. In support of his contention that trial Court has become functus officio, learned counsel has relied on the decision reported in (2008) 8 SCC 92 (supra). In my view, the said decision would not come to the aid of the petitioner in the facts and circumstances of the present case, since no adverse order withdrawing the Succession Certificate 14 or altering the certificate is passed. When once the judgment is signed and pronounced, the same shall not be altered or added, as the Court becomes functus officio. But in this case, after disposal of the suit, the petitioner had filed the application under Section 151 of CPC for correction of Succession Certificate to include 'C' schedule property. Under impugned order, the Court has neither altered nor added, but stayed the order till disposal of pending suits, in the interest of justice. When a petition is pending for revocation of Succession Certificate and most importantly when Dr.Nanda S., is the nominee to those Fixed Deposits, it may not be proper for the Court to permit the petitioner to execute the Succession Certificate as ordered in C.Misc. 108/2017. More importantly the petitioner has not made Dr.Nanda S., as party to P & SC No.284/2016 and obtained Succession Certificate. More over, this is not a case where this Court should exercise its jurisdiction under Article 227 of the Constitution of India. The Hon'ble Supreme Court in the case reported in (2003) 3 SCC 524 in the case of SADHANA 15 LODH v/s NATIONAL INSURANCE CO. LTD. AND ANOTHER, at para-7 has held as follows:
"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."
11. Further, the Hon'ble Supreme Court has held that to avoid miscarriage of justice or to prevent injustice, Section 151 of CPC could be exercised by the Court. The Hon'ble Supreme Court in a case reported in (2009) 8 SCC 646 at paragraph 133 has held as follows:
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"The underlying principle of Section 151 of the Code ordinarily would apply where the area is grey. It indisputably confers incidental powers. It confers power on a Court to do something which in absence of any provision contrary thereto would lead to advancement of justice and prevent injustice............................................................"
12. In the facts and circumstances of the case, the trial Court has rightly exercised its power under Section 151 of CPC and has rightly stayed execution of Misc. Case No.108/2017 till disposal of O.S.No.2673/2016 and O.S.No.6455/2017, so as to prevent injustice. The trial Court while rejecting the application has rightly noted that the nominee of 'C' schedule property is Dr.Nanda S., and though petitioner was well aware, suppressing the material facts attempted to obtain Succession Certificate in respect of 'C' schedule property. The claim of the petitioner and Dr.Nanda S., is to be decided at the time of trial. The impugned order has not caused any prejudice or injustice to the petitioner. 17 Hence, I decline to interfere with the order passed by the trial Court. Accordingly, the writ petition is rejected.
SD/-
JUDGE mpk/-* CT: bms