Kerala High Court
K.V.Parameswaran vs Chandramathy.M on 1 October, 2013
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY,THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935
CRP.No. 402 of 2013 ()
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AGAINST ORDER IN IA.NO.2555/2012 IN OS.NO.1061/1993 OF IIND ADDL.SUB COURT,
ERNAKULAM
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REVISION PETITIONER(S)/RESPONDENTS 4,19 & 20 IN I.A.:
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1. K.V.PARAMESWARAN, AGED 73,
S/O.KARUVELIPARAMBIL LATE VAJRAVALA SHETTY
KALAZHATHU PARAMBU, PACHALAM, KOCHI-682012
ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
2. K.P.SANTHOSH, AGED 39 YEARS
S/O.LATE LEELA & 1ST PETITIONER HEREIN
KALAZHATHUPARAMBU, PACHALAM, KOCHI-682012
ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
3. K.P.JANCY , AGED 39 YEARS
D/O.LATE LEELA & 1ST PETITIONER HEREIN
KALAZHATHUPARAMBU, PACHALAM, KOCHI-682012
ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
BY ADV. SRI.T.N.HAREENDRAN
RESPONDENT(S)/PETITIONER & RESPONDENTS 1 TO 3, 5 TO 18 & 21 IN I.A.:
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1. CHANDRAMATHY.M,
RETIRED CENTRAL GOVERNMENT EMPLOYEE
W/O.SRI.G.KRISHNAN, KALAZHATRHUPARAMBU, PACHALAM
KOCHI-682012, PRESENTLY RESIDING AT PADMA VILASAM
SOUTH JANATHA ROAD, THAMMANAM, PALARIVATTOM
KOCHI-682025.
2. K.V.BHAYYAMMU (DIED)
D/O.KARUVELIPARAMBIL LATE VAJRAVALA SHETTY
PALAPARAMBU HOUSE, S.R.M.ROAD, PACHALAM
KOCHI 682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
PJ
....2/-
..2..
CRP.No. 402 of 2013 ()
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3. K.R.DINESH, AGED 51 YEARS
S/O.LATE RAMACHANDRAN, CENTRAL GOVERNMENT EMPLOYEE
KALAZHATHU PARAMBU, PACHALAM, KOCHI 682012
ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
4. SIVAN, AGED 77 YEARS
S/O.KARUVELIPARAMBIL LATE VAJRVALA SHETTY
KALAZHATHU PARAMBU, PACHALAM, KOCHI-682012
ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
5. K.V.PUSHPAVATHY
W/O.LATE K.V.RAMADAS, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
6. K.R.PRADEEP KUAMR, AGED 47 YEARS
S/O.LATE K.V.RAMADAS, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
7. K.R.PRAKASH KUMAR, AGED 42 YEARS
S/O.LATE K.V.RAMADAS, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
8. K.R.PORAMOD KUMAR, AGED 39 YEARS
S/O.LATE K.V.RAMADAS, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
9. K.R.PRAMEELA, AGED 37 YEARS
D/O.LATE K.V.RAMADAS, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
10. K.R.VIJAYALAKSHMI, AGED 35 YEARS
S/O.LATE K.V.RAMADAS, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
11. LEELA (DIED)
W/O.K.V.PARAMESWARAN, KALAZHATHU PARAMBU, PACHALAM
KOCHI-682012, ERNAKULAM VILLAGE, KANAYANNOOR TALUK.
12. ANURUDHAN, AGED 72 YEARS
S/O.JAGANATHA SHETTY, PALAPARAMBU HOUSE, S.R.M.ROAD
PACHALAM P.O., KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
13. BALARJ, AGED 59 YEARS
S/O.JAGANATHA SHETTY, PALAPARAMBU HOUSE, S.R.M. ROAD
PACHALAM P.O., KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
PJ
...3/-
..3..
CRP.No. 402 of 2013 ()
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14. VASANTHAN, AGED 52 YEARS
S/O.JAGANATHA SHETTY, PALAPARAMBU HOUSE, S.R.M. ROAD
PACHALAM P.O., KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
15. AHALLIA, AGED 67 YEARS
D/O.JAGANATHA SHETTY, KONTHATTY PARAMBU
H.NO.XXIII/2146, PALLURUTHY, KOCHI-682006.
16. SUSHEELA, AGED 62 YEARS
D/O.JAGANATHA SHETTY, PALAPARAMBU HOUSE, S.R.M. ROAD
PACHALAM P.O., KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
17. VALSALA, AGED 54 YEARS
D/O.JAGANATHA SHETTY, PALAPARAMBU HOUSE, S.R.M. ROAD
PACHALAM P.O., KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
18. SULOCHANAN, AGED 49 YEARS
D/O.JAGANATHA SHETTY, PALAPARAMBU HOUSE, S.R.M. ROAD
PACHALAM P.O., KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
19. K.P.MANIKANTAN, AGED 36 YEARS
S/O.LATE LEELA & PETITIONER HEREIN KALAZHATHU PARAMBU
PACHALAM, KOCHI-682012, ERNAKULAM VILLAGE
KANAYANNOOR TALUK.
R1 BY ADVS.SRI. N .HARIDAS (BY ORDER)
SRI.ANTONY MATHEW
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 01-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
"C.R."
P.N.RAVINDRAN, J.
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C.R.P.No.402 of 2013
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Dated this the 1st day of October, 2013
ORDER
The first petitioner is the fourth defendant in O.S.No.1061 of 1993 on the file of the Court of the Second Additional Subordinate Judge of Ernakulam. His wife Smt.Leela was the 11th defendant therein. Petitioners 2 and 3 who are their children were not parties to the suit. The first respondent is the plaintiff and the other respondents are the other defendants in the suit. The suit instituted by the first respondent/plaintiff was to set aside Ext.A13 sale deed dated 18.9.1992, registered as document No.3799 of 1992 of the Sub Registrar's Office, Ernakulam, executed by the first defendant (Smt.K.V.Bhayyammu) in favour of the second defendant (Sri.K.R.Dinesh) and for a decree directing the defendants to execute a sale deed in favour of the plaintiff and restraining them from making any construction in the plaint schedule property or from committing acts of waste therein or from altering its physical features. The first respondent had also prayed for a mandatory injunction directing the defendants to remove the shed recently put up by them in the plaint schedule property. The case set out in the C.R.P.No.402 of 2013 2 plaint in O.S.No.1061 of 1993 was that though the first defendant had entered into Ext.A2 to Ext.A12 agreements with the plaintiff, the first one on 6.1.1983 and the last one on 30.9.1985, agreeing to convey 4.50 cents of land which was set apart to her share in the H schedule to the final decree for partition passed in O.S.No.89 of 1968 on the file of the Court of the Subordinate Judge of Ernakulam, she did not convey the property to the plaintiff but conveyed it to the second defendant as per Ext.A13 sale deed dated 18.9.1992. In the plaint in O.S.No.1061 of 1993 the property in dispute was described as land allotted to the share of the first defendant as per H schedule to the final decree for partition passed in O.S.No.89 of 1968 on the file of the Court of the Subordinate Judge of Ernakulam and marked as plot C 4 in the plan submitted by the Advocate Commissioner appointed in that suit. The survey number of the property was mentioned as 29/2 of Ernakulam Village, Kanayannur Taluk, Ernakulam District.
2. The first defendant entered appearance and filed a written statement resisting the suit. She contended that she was always ready and willing to perform her part of the contract, but the plaintiff did not have sufficient money to pay the balance sale consideration and therefore, she cannot question the sale in favour of the second defendant. The second defendant entered appearance C.R.P.No.402 of 2013 3 and filed a written statement contending that she is a bona-fide purchaser for value without notice and therefore, the sale deed in her favour is not liable to be set aside. Defendants 3, 4 and 11 (the fourth defendant being the first petitioner herein and the 11th defendant being his wife Smt.Leela) filed a joint written statement contending inter-alia that they are not necessary parties to the suit. They also contended that they are not aware of the agreement between the plaintiff and the first defendant.
3. An Advocate Commissioner was appointed to inspect the plaint schedule property and he submitted Ext.C1 report dated 8.8.1994. The execution of Ext.A2 agreement dated 6.4.1983 between the plaintiff and the first defendant and the fact that it was being periodically renewed and the last of the renewals was by Ext.A12 agreement dated 15.3.1993 was not in dispute. The fact that they related to 4.50 cents of land described in H schedule to the final decree for partition passed in O.S.No.89 of 1968 on the file of the Court of the Subordinate Judge of Ernakulam was also not in dispute. In the trial court, the plaintiff was examined as PW-1 and Exts.A1 to A17 were marked on her side. No evidence, oral or documentary, was adduced on the side of the defendants. The trial court on an analysis of the evidence, oral and documentary available in the case held that the second defendant is not a bona- C.R.P.No.402 of 2013 4 fide a purchaser without notice. The trial court also held that the suit is not time barred, that it is not bad for non joinder of necessary parties, that the plaintiff was always ready and willing to perform her part of the contract and that she is entitled to the declaration prayed for. The suit was accordingly decreed and the second defendant and additional defendants 12 to 18 were directed to execute a sale deed in favour of the plaintiffs within 2= months in the event of the plaintiff depositing the balance sale consideration in the court below within two months. It was also clarified that the decree would be subject to the outcome of S.A.No.457 of 1990 then pending in this Court wherein the final decree for partition passed in O.S.No.89 of 1968 above referred to, was under challenge. Though the second defendant filed A.S.No.277 of 1999 in this Court challenging the decree and judgment in O.S.No.1061 of 1993, the said appeal was dismissed by judgment delivered on 8.9.2009.
4. After the decree in O.S.No.1061 of 1993 attained finality, the plaintiff filed I.A.No.6913 of 2010 under section 28 of the Specific Relief Act, 1963 for an order directing the defendants to execute a sale deed in her favour. Pursuant to the order passed on that application a sale deed dated 5.11.2011 was executed and registered as document No.5206 of 2011 of the Sub Registrar's Office, Ernakulam conveying, 1.82 ares of land (corresponding to C.R.P.No.402 of 2013 5 4.50 cents) situate in Re-Survey No.29/2 of Ernakulam Village, Kanayannur Taluk, Ernakulam District to the petitioner. The sale deed contained a recital to the effect that the land conveyed thereunder is the property allotted to the share of the first defendant as per H schedule to the final decree for partition passed in O.S.No.89 of 1968 on the file of the Court of the Subordinate Judge of Ernakulam.
5. After the sale deed was executed, the plaintiff filed I.A.No.664 of 2012 in I.A.No.6913 of 2010 in O.S.No.1061 of 1993 for the appointment of an Advocate Commissioner to measure and demarcate the plaint schedule property with the help of a private surveyor. The Advocate Commissioner inspected the plaint schedule property on 18.3.2012 and submitted a report dated 27.3.2012 accompanied by a sketch. In paragraph 3 thereof he reported that though in the plaint and in the decree in O.S.No.1061 of 1993 reference is made to the fact that the property is allotted to the share of the first defendant as per H schedule to the final decree passed in O.S.No.89 of 1968 and it is seen situate in survey No.29/17, in the sale deed executed through court on 5.11.2011 (sale deed No.5206/2011) the survey number is given as 29/2. The plaintiff thereupon filed I.A.No.2555 of 2012 under section 28(3) of the Specific Relief Act, 1963 praying that a rectification deed may C.R.P.No.402 of 2013 6 be executed incorporating the correct survey sub division in the sale deed already executed by the court. The second respondent (the second defendant) filed an objection dated 16.10.2012 contending that the execution court cannot go beyond the decree and if at all a rectification deed is to be executed, the decree has to be modified. Petitioners 1 and 2 herein filed an objection dated 18.1.2013 contending inter alia that the decree in favour of the plaintiff is for the property situate in Sy.No.29/2, that the first defendant has not agreed to sell the property covered by Sy.No.29/17, that she had agreed to sell the property situate in Sy.No.29/2 only and therefore, there is no discrepancy. They contended that the petition is not maintainable and that if at all there is any discrepancy in the survey sub division, a fresh suit will have to be filed. They also contended that as the survey number shown in the plaint in O.S.No.1061 of 1993 was 29/2 of Ernakulam Village over which they have no proprietary interest, they had not taken any serious contentions in the suit and that if the survey number had been shown as 29/17, they would have taken serious contentions. They also contended that the fourth defendant is in possession of buildings bearing door Nos.46/947 and 46/948 and that the attempt of the plaintiff is to get possession of the said buildings illegally, without a decree in his favour. The court below considered the rival contentions and C.R.P.No.402 of 2013 7 allowed I.A.No.2555 of 2012 by order passed on 2.4.2013. By that order, the court below directed the first defendant to execute a rectification deed to the sale deed already executed by the court in favour of the petitioner within one month, failing which it was held that the petitioner will be entitled to get such a rectification deed executed by the court. The said order is under challenge in this civil revision petition.
6. I heard Sri.T.N.Hareendran, learned counsel appearing for the petitioners and Sri.Antony Mathew, learned counsel appearing for the first respondent/plaintiff. Sri.T.N.Hareendran, learned counsel appearing for the petitioners contended relying on the decision of the Apex Court in Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. And Ors. (AIR 2008 SC 225) more particularly the observations and findings in paragraphs 21 to 23 thereof, that as the mistake was in the original agreement, the rectification sought could not have been granted, that the request made by the plaintiff required evidence to be adduced as regards the property which was agreed to be conveyed and therefore, the impugned order is liable to be set aside. The learned counsel for the petitioner contended that the mistake was not one which arose out of an accidental slip or omission, that in the plaint and in the decree the property is described as situate in Sy.No.29/2 and therefore, it C.R.P.No.402 of 2013 8 is not permissible to exercise the jurisdiction conferred on the court under section 152 of the Code of Civil Procedure to go into the question as to what exactly was the property intended to be sold by the first defendant to the plaintiff.
7. Per contra, Sri.Antony Mathew, learned counsel appearing for the first respondent/plaintiff contended relying on the decisions of this Court in Kassim Beevi v. Mytheen Beevi & Ors. [1988 (1) KLJ 60] and Brahmanand v. Rajan [2012 (4) KLT 540] that any error in the description of the property in the decree as well as in the plaint which was found at the time of registration of the sale deed following a decree for specific performance can be corrected by the trial court even after the appellate decree, invoking the power under sections 151 to 153 of the Code of Civil Procedure, that before the trial court there was no dispute about the identity of the plaint schedule property or its actual boundaries, that there was no mistake in the description of the property or its boundaries except the error in the survey sub division and therefore, it cannot be said that by issuing the impugned order, the court below has traversed beyond the decree or that the impugned order causes any prejudice to the parties.
8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through C.R.P.No.402 of 2013 9 the pleadings and the materials on record including the final decree for partition passed in O.S.No.89 of 1968 on the file of the Court of the Subordinate Judge of Ernakulam. As per the final decree for partition passed on 20.2.1985 in O.S.No.89 of 1968, the property described in H schedule therein was allotted to the share of the first defendant in O.S.No.1061 of 1993. The first defendant in O.S.No. 1061 of 1993 was the seventh defendant in O.S.No.89 of 1968 above referred to. These facts are not in dispute. The plot marked as plot C4 in the plan submitted by the Advocate Commissioner appointed in O.S.No.89 of 1968, is the property allotted to the share of the seventh defendant. It is shown as situate in Sy.No. 29/17 of Ernakulam Village, Kanayannur Taluk, Ernakulam District. These facts are also not in dispute. The fourth defendant in O.S.No.1061 of 1993 was allotted the property described in E schedule to the final decree in O.S.No.1061 of 1993. That parcel of land is also situate in Sy.No.29/17. In the schedule to the plaint in O.S.No.1061 of 1993 the property is described as the property allotted to the share of the first defendant in O.S.No.1061 of 1993 as per H schedule to the final decree in O.S.No.89 of 1968. However the survey number was wrongly shown as 29/2. The fact that the correct survey number of the property is 29/17 and that there was an error in the survey sub division number and it came to the notice C.R.P.No.402 of 2013 10 of the parties only when the Advocate Commissioner appointed as per order passed on I.A.No.664 of 2012 in I.A.No.6913 of 2010 in O.S.No.1061 of 1993 filed his report dated 27.3.2012 are also not in dispute. Paragraphs 3 and 4 thereof read as follows:-
"3. This Hon'ble court has executed Sale Deed No. 5206/11 of SRO Ernakulam in favour of the plaintiff in OS No.1061/93. The property described in the said Sale Deed is 'H' schedule in the final decree passed in OS No.89/1968 dated 20-2-85 on the files of Sub Court, Ernakulam. The 'H" schedule consists of item No.1 and 2, which is plot No.3 and 20 in the final decree sketch. This property, having an extent of 1.82 Ares, lies in Sy.No.29/2 of Ernakulam Village as per the Sale Deed No.5206/11. The same Survey Number is seen in the plaint in OS No.1061/93. But, I have verified the copy of commission report in OS No.89/1968 and found that the correct survey No. is 29/17. The survey No.29/17 is also written in the sketch in the final decree.
Therefore, I instructed the surveyor to ascertain the correct Survey No. The surveyor has shown me a copy of Field Sketch in Sy. No.29 of Ernakulam village and found that the plaint schedule property actually lies in Sy.No.29/17.
4. The property was measured on the basis of the sketch in the final decree in OS No.89/1968 and the field sketch in survey No. 29 and the Sale Deed No.5206/11 SRO Ernakulam."
9. Petitioners 1 and 2 herein did not in their objections dispute the fact that the land which was the subject matter of the agreement between the first defendant and the plaintiff in O.S.No.1061 of 1993 was the land allotted to the share of the first C.R.P.No.402 of 2013 11 defendant as per the final decree for partition passed in O.S.No.89 of 1968 on the file of the Court of the Subordinate Judge of Ernakulam. Their only contention was that without getting the plaint and the decree amended, a rectification deed cannot be executed. In my opinion, the said contention is plainly untenable.
10. A similar issue arose before this Court in Kassim Beevi v. Mytheen Beevi & Ors. (supra). In that case, on the execution side, a contention was raised that boundaries in the draft sale deed did not tally with the boundaries shown in the agreement for sale and in the plaint and in the decree. In the plaint and in the decree, the description of the boundaries as in the agreement for sale had been reproduced. On the execution side, the decree holder filed an application for correction of the decree and that application was dismissed on the ground that an application would lie only to this Court in view of the fact that an appeal had been taken to this Court from the decree passed by the trial court. The decree holder thereupon filed an application in this Court for amendment of the decree and judgment. On that application this Court held that the execution court itself had jurisdiction to construe the decree and to decide as to what was the property to which the decree related, with reference to the pleadings, the judgment and other records. The decree holder thereafter filed an execution petition with a draft C.R.P.No.402 of 2013 12 sale deed in which he incorporated the correct boundary description as set out in the sale deed in favour of the seller. Despite that fact, the seller objected to the execution petition and contended that the boundaries in the draft sale deed do not tally with the boundaries of the property as set out in the agreement for sale, in the plaint and in the decree. The execution court overruled the said objection and approved the draft sale deed. That order was challenged in this Court in C.R.P.No.70 of 1986. Dismissing the revision petition, a learned single Judge of this Court in Kassim Beevi v. Mytheen Beevi & Ors. (supra) held as follows:-
"3. This is one of those cases where the execution of a decree is attempted to be stalled on mere technicalities. The suit itself was keenly fought out by the petitioner. The matter was carried through three courts. Thereafter when the execution is taken, technical pleas are raised as if the court is precluded from taking note of the actual state of affairs and conveying the property with a proper sale deed describing the actual boundaries. It is not as if there was any dispute as to the property in regard to which specific performance was sought. It was not in dispute that the property covered by Ext.P2 and that sold as per Ext.D2 was one and the same. That there was a mistake in the boundary description in Ext.P2 is also clear from the observations in paragraph 13 of the judgment in the suit. The plaintiff is entitled, in a suit for specific performance, to have the property agreed to be sold to him, conveyed with a proper, correct and effective deed of sale. When there is no dispute regarding the identity of the property there is no reason why the actual boundaries of the property, as understood by all the parties, C.R.P.No.402 of 2013 13 should not be incorporated in the sale deed to avoid any possible confusion in future. It is not as if by doing so the court is traversing beyond the decree or causing any prejudice to any of the parties or conveying a property not agreed to be conveyed. In a case of this nature the court is bound to carry out and implement its decree in accordance with its tenor, which in turn would imply that the property should be correctly described with the proper boundaries. That is all that has been done by the lower court in approving the draft sale deed. The plaintiff has only incorporated the boundaries from Ext.D2, the sale deed in favour of the petitioner. In the absence of any dispute that this was the property which was the subject matter of Ext.P2 also, the lower court has only acted rightly in approving the draft sale deed."
It was held that the plaintiff in a suit for specific performance, is entitled to have the property agreed to be sold to him conveyed with a proper, correct and effective deed of sale. It was also held that when there is no dispute regarding the identity of the property there is no reason why the actual boundaries of the property, as understood by all the parties, should not be incorporated in the sale deed to avoid any possible confusion in future. The learned Judge held that by doing so it cannot be said that the court is traversing beyond the decree or causing any prejudice to the parties or conveying a property not agreed to be conveyed.
11. In Brahmanand v. Rajan (supra), this Court considered an application filed by the decree holder in a suit for specific performance to amend the schedule to the plaint, the decree and C.R.P.No.402 of 2013 14 other records. Such an application was necessitated when the decree for specific performance was put in execution and in that process the sale deed was presented for registration. The Sub Registrar noticed that in the plaint as well as in the decree, the property was shown as situate in Kasaba Village whereas it is actually situate in Nagaram Village of Kozhikode Taluk. Thereupon, the plaintiff moved an application for correction of the plaint and the decree. The judgment debtors opposed the application. Accepting the contention that since the decree of the trail court had been upheld by the Apex Court, the amendment can be carried out only by the Apex Court and not by the trial court, the trial court dismissed the application. Allowing W.P.(C)No.11590 of 2007 filed under Article 227 of the Constitution of India, a learned single Judge of this Court held as follows:-
"11. A perusal of the provisions of the Specific Relief Act shows that even after the decree for specific performance is passed by the trial court, it is clothed with the powers under Ss.22 and 28 of the Act to grant certain reliefs to the parties. This power is retained by the trial court even when the decree for specific performance passed by the trial court is confirmed in appeal by the appellate court. The doctrine of merger in a case of decree for specific performance applies only to a limited extent.
12. In the decision reported in Kumar Dhirendra Mullick's case (supra), it was held as follows:
"In the case of Hungerford Investment Trust Ltd. v. Haridas Muhdhra, it has been held that C.R.P.No.402 of 2013 15 when the court passes the decree for specific performance, the contract between the parties is not extinguished. That the decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree. Hence, the court retains control over the matter, despite the decree, it is open to the court to order rescission of the agreement, when it is found that the decree holder is not ready and willing to abide by his obligations under the decree."
It has to be borne in mind that the decree in the instant case was one for specific performance of a contract. It is well settled that even after the decree is affirmed in appeal by the Apex Court and there is a merger in the strict sense, even in a case where time for deposit is granted by the appellate court, extension of time for the said deposit can be granted by the trial court. It is not necessary that the person concerned should approach the appellate court for extension of time. This shows that even after the decree passed by the trial court is confirmed by the appellate court, the trial court does not become functus officio and retains control over the matter. The power granted to the trial court under Ss.22 and 28 of Specific Relief Act are indications in this regard.
13. In the decision reported in Abdhu's case (supra) dealing with a suit for partition, it was held as follows:
"As the final decree proceedings were pending, the records of the case was within the power of the court for effecting corrections as the one found out in the course of the proceedings in this case. Such a power can be exercised by a court in the course of the final decree proceedings. The learned Munsiff was right in holding that it had inherent power to correct the error in the survey sub division number of the property ordered to be partitioned as per the preliminary decree both in the schedule attached to the plaint and to the preliminary decree."
Following the said decision, in the decision reported in Krishnan's case (supra) it was held as follows:
"It is by a mistake that the Sy. Nos. were not included. Justice requires that an amendment C.R.P.No.402 of 2013 16 should be made. Then the question is whether the trial court will be right to amend. As the final decree proceedings were pending, the record of the case was within the power of the court for effecting corrections as the one found out in the course of the proceedings in this case. Instead of relegating the parties to a fresh suit to rectify the mistake, it will only be in the interest of justice to correct the mistake in the final decree proceedings itself in exercise of the inherent power of the court. Since the records are with the court, the court can make necessary amendments. The trial court itself can exercise the power for amendment. So far as the court is concerned, it will be injustice, if the amendment is not allowed because there is no case that the property conveyed by Ext.B2 did not belong to the plaintiffs."
14. Following the principles laid down in the above decisions, and also considering the fact that the decree is one for specific performance, and that the doctrine of merger applies only to a limited extent, it cannot be said that the trial court is denuded of power to effect corrections of accidental mistakes, omissions, etc. After all procedure is a handmaid of justice and procedural law cannot be utilized to deny legitimate rights due to the parties. Thus, viewed from any angle, it is very clear that in the case on hand the trial court retains the power to effect such corrections which fall within the ambit of S.152 and S.153 of the Code of Civil Procedure or assuming it does not fall within S.152 or S.153 of C.P.C., the power conferred under S.151 C.P.C is still available."
12. It is evident from the plaint and the decree in O.S.No.1061 of 1993, more particularly the description of the plaint schedule property that the agreement between the first defendant and the plaintiff therein was to convey to the plaintiff the property allotted to the share of the first defendant as per H schedule to the final decree in O.S.No.89 of 1968. The petitioners herein had no C.R.P.No.402 of 2013 17 case that the property agreed to be conveyed by the first defendant to the plaintiff in O.S.No.1061 of 1993 was not the property allotted to her share as per the final decree for partition. It is evident from the documents produced on the trial side that though the first of the agreements between the parties was entered into on 6.4.1983, fresh agreements were being periodically executed in view of the delay in the passing of the final decree. Ext.A12, the last of the agreements between the parties, was entered into only on 15.3.1993. Even in the instant application, the petitioners have no case that by the proposed rectification deed, any property other than the property allotted to the share of the first defendant as per the final decree for partition in O.S.No.89 of 1968 would be conveyed to the plaintiff in O.S.No.1061 of 1993 if a rectification deed is executed showing the survey number as Sy.No.29/17. On an over all view of the matter I am of the considered opinion that by directing the execution of a rectification deed in the instant case, the execution court would not be traversing beyond the decree or that the impugned order would cause prejudice to any of the parties. The execution of a rectification deed as directed by the court below would only enable the plaintiff in the instant suit to have the property agreed to be sold to him, conveyed by a proper, correct and effective deed of sale.
C.R.P.No.402 of 2013 18
I accordingly hold that there is no merit in the instant civil revision petition. The civil revision petition fails and is dismissed. No costs.
Sd/-
P.N.RAVINDRAN JUDGE rkc/vpv