IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 23017 of 2009(O) -------------------------- OS.293/2007 of III ADDL. MUNSIFF COURT, THRISSUR .................... PETITIONER: --------------- COCHIN DEVASWOM BOARD REP.BY THE SECRETARY, COCHIN DEVASWOM BOARD OFFICE, THRISSUR. BY ADV. MR.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B RESPONDENTS: --------------- 1. MADHAVAN, S/O.KILIKOTTU CHAKKAPPUM, THANNYAM DESOM AND VILLAGE, THRISSUR TALUK. 2. P.K.BALAN, PUNNEDATH PARAMBIL VEEDU, P.O.VADAKKUMMURI, PERINGOTTUKARA, THRISSUR-680 565. 3. A.A.GOPI, ATHIYARATHU VEEDU, NEAR CHERAI TEMPLE, P.O.CHERAI. ADV. MR.T.A.SHAJI FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23017 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: JUDGMENT DTD. 26.6.2007 IN O.S.NO.293/1997 OF THE SUB COURT, THRISSUR. EXT.P2: DECREE IN O.S.NO.293/1997 DTD. 26.6.2007 OF THE SUB COURT, THRISSUR. EXT.P3: AFFIDAVIT ALONG WITH PETITION IN I.A.NO.7002/1997 IN O.S.NO.293/1997 DTD. 26.6.2007 OF THE SUB COURT, THRISSUR. EXT.P4: EXECUTION PETITION SHOWING THE ENDORSEMENT OF THE DECREE HOLDER. EXT.P5: ORDER IN I.A.NO.7002/2007 IN O.S.NO.293/1997 OF II ADDITIONAL SUB COURT, THRISSUR. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.23017 of 2009 - O --------------------------------- Dated this the 22nd day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the entire records leading to Exhibit P5 and set aside the same. ii) To issue a direction to the Sub Judge, Thrissur to take back Exhibit P4 on its file and to consider the same and pass appropriate orders in accordance with law.” 2. Petitioner is the first defendant in O.S.No.293 of 2007 on the file of the Sub Court, Thrissur. Suit was one for damages and the first respondent was the plaintiff. Petitioner is the Board in management of several temples situate within the former princely State of Kerala. In one among the temples, Thriprayar Temple, during the annual festival conducted, as part of the rituals and customs, pop gun fire works were arranged in the temple compound. The right to do such firing work was obtained by second and third respondents in the writ petition, who were the second and third defendant in the suit. On account of a mishap, during the firework the plaintiff sustained some burn W.P.(C).No.23017 of 2009 - O 2 injuries and later he laid the suit claiming damages from all the three defendants jointly and severally. Suit claim was resisted only by the first defendant, Cochin Devaswom Board, the petitioner herein. The other two defendants remained exparte. Court below upheld the claim of the plaintiff and awarded him damages of Rs.91,109.36/- allowing him to realize the amount from all the defendants jointly or severally. Pursuant to execution, steps taken by the first defendant/plaintiff, petitioner/first defendant remitted the entire decree amount due, and satisfaction was also recorded. Thereafter, petitioner moved an application for correcting the decree stating that in the judgment rendered by the court the right of the first defendant to realise the amount under decree from the other two defendants after payment of the decree debt due to the plaintiff has been indemnified, but, that has not been given expression by mistake in the decreetal portion of the judgment. Notice of the above application was given to defendants 2 and 3. After hearing the parties learned Additional Sub Judge dismissed that application of the petitioner vide Ext.P5 order. Propriety and correctness of W.P.(C).No.23017 of 2009 - O 3 that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner inviting my attention to the finding entered on issue Nos.1 to 3 jointly considered by the court, as reflected in Ext.P1 judgment rendered in that suit, submitted that the right of the first defendant to have reimbursement of the amount after discharging the debt has been upheld by the trial court. But, while, the reliefs were granted in favour of the plaintiff in Ext.P1 judgment there was an omission to state specifically the right to claim reimbursement by the first defendant from the other defendants. In the decree also that omission continued and it was noticed much later. In that circumstance the decree has to be corrected entitling the first defendant to get reimbursement of the amount which had already been discharged by payment to the plaintiff from the second and third defendants in the suit, submits the counsel. On the other hand learned counsel appearing for the second and W.P.(C).No.23017 of 2009 - O 4 third defendants submitted there is no impropriety or illegality in Ext.P1 order passed by the court below as the reliefs allowed in ext.P1 judgment clearly spell out no right has been conferred on the first respondent to recover the amount from the second and third defendants after payment to the plaintiff. 5. Perusing Ext.P1 judgment, it is seen, four issues were raised by the court for adjudication and among them the second issue related whether all the defendants are jointly and severally entitled to compensate the plaintiff. The first three issues including the second issue aforesaid were considered jointly by the court and on the basis of the evidence definite finding has been entered thereof. In concluding the discussion of those issues jointly considered, the court has given expression to entitlement of the first defendant to have reimbursement after payment of the claim to the plaintiff. The finding entered by the court, as seen from the judgment reads thus: “The first defendant has to pay the amount to the plaintiff and the first defendant is entitled to reimburse the amount from the third defendant on the basis of the Ext.B1 agreement.” W.P.(C).No.23017 of 2009 - O 5 So much so, there cannot be any doubt that the first defendant as per the finding entered by the court is entitled to have reimbursement of the amount from third defendant after satisfying the claim of the plaintiff as decreed by the court. Issue No.4 cast in the suit related to the reliefs to be granted to the plaintiff. In granting the reliefs to the plaintiff the finding entered as referred to above was not given expression to in the operative portion of the judgment. That, however, does not foreclose the right of the first defendant to bring to the notice of the court and seek correction of the judgment, and also the decree, on the basis of the findings entered on the issues. That alone was done by the first defendant in the present case. It appears that the learned Sub Judge without referring to the finding entered on issue Nos. 1 to 3 and discarding the proved facts and circumstances presented, for the solitary reason that in the relief column there was no specific mention as to the entitlement of the first defendant to claim reimbursement of the third defendant, dismissed the application moved for correction of the decree and operative portion of judgment. That cannot be sustained. W.P.(C).No.23017 of 2009 - O 6 Setting aside Ext.P5 order I direct the court below to consider Ext.P3 application moved by the petitioner/first defendant for correction of the decree and operative portion of judgment afresh taking note of the observations made above and in accordance with law. The court below is further directed to hear and dispose of Ext.P3 application within six weeks from the date of receipt/production of a copy of this judgment. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-