IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 34285 of 2008 (F) ----------------------------------- OS.440/1978 of PRL.MUNSIFF COURT, NEDUMANGAD .................... PETITIONERS: ----------------- 1. KAUSALYA, D/O.CHELLAMMA VAZHITHALACKAL VEEDU, OONNAMPARA, THIRUVANANTHAPURAM. 2. PRABHAKARAN,. S/O.KESAVAN, VAZHITHALACKAL DO.DO. 3. NAKULAN, S/O.KESAVAN, DO.DO. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS: ----------------- 1. OMANA, D/O.KOCHU PARVATHY, OONNANAMPARA VEEDU, IRUMBA MURI, KARAKULAM VILLAGE THIRUVANANTHAPURAM. 2. KRISHNANKUTTY, S/O.CHELLAPPAN, OONNANAMPARA VEEDU, IRUMBA MURI, KARAKULAM VILLAGE THIRUVANANTHAPURAM, REP. BY 1ST RESPONDENT GUARDIAN. 3. SARASAMMA, D/O.CHINNA, OONNANAMPARA VEEDU, IRUMBA MURI, KARAKULAM VILLAGE THIRUVANANTHAPURAM. 4. VIJAYAN, S/O.SREEDHARAN, DO.DO. WP(C).No. 34285 of 2008 (F) -2- 5. CHANDRAN, S/O.SREEDHARAN, DO.DO. 6. SURENDRAN, S/O.SREEDHARAN, DO.DO. 7. JAYAKUMAR, S/O.SREEDHARAN, DO.DO. 8. VALSALA, D/O.SARASAMMA, DO.DO. 9. SUDHA, D/O.SARASAMMA, DO.DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34285 of 2008 ------------------------------------------------ Dated this the 20th day of November, 2008 JUDGMENT Petitioners are respondents 19 to 21 in I.A.3083/01 in O.S.440/1978 on the file of the Principal Munsiff's Court, Nedumangadu. The respondents are petitioners 1 to 9 in the said I.A. The suit was one for partition and that was decreed passing a preliminary decree declaring that plaintiffs are entitled to 2/16 shares in plaint 'A' and 'B' schedule properties and that they are entitled to get possession of their shares in plaint 'A' schedule property from defendants 18 to 21 after depositing the proportionate mortgage amount and value of improvements that will be decided in the final decree proceedings. However, in Ext.P2 final decree so passed no provision was made for payment of value of improvements or the mortgage amount. The W. P. C. No.34285 of 2008 -2- execution court consequently, declined to grant relief of recovery of possession as according to the execution court, the final decree passed will not settle the dispute in between the parties because there is no relief granted for redemption and redemption price also is not fixed and that therefore, no order of recovery of possession can be granted as prayed for in the execution petition. 2. When the matter was taken up in the revision before this Court vide C.R.P.1639/91, this Court vide Ext.P3 order permitted the decree holders therein to move an application for amendment of the final decree with liberty to the respondents/judgment debtors to raise all contentions including the contentions of limitation to correction of decree sought for. Consequent to Ext.P3 order, the plaintiff moved Ext.P4 application for amendment of decree and that was allowed vide Ext.P5 order W. P. C. No.34285 of 2008 -3- impugned in this Writ Petition. The court below while allowing the amendment sought for, overruled the objection of limitation as that court was of the view that when correction is sought for which was necessitated by reason of a mistake of court it can be so done invoking Section 152 as also 151 of the Civil Procedure Code. 3. Counsel for the petitioners submits that he is not assailing the amendment allowed by the court of the final decree as the court is entitled to correct the mistake at any time and that he has no quarrel also as regards the correctness of the proportionate mortgage amount or refusal of value of improvements as value of improvements had not been got assessed. His grievance is that the court has observed that limitation for execution will begin to run only from the date of amendment. The occasion to make such an observation by W. P. C. No.34285 of 2008 -4- the court below was being furnished by the petitioners themselves as they advanced a contention that the execution of the decree will itself be barred as twelve years have elapsed after passing of the final decree on 23/07/1983 and if the application is allowed that will amount to reviving a decree which has become time barred especially when in the final decree there was no express provision made for recovery of possession of the share of the respondents herein from the petitioners/defendants. It was in that context that the trial court which allowed amendment of the decree vide Ext.P5 order provided also for separate possession of the shares of the plaintiffs. 4. The question as to whether when recovery of possession had not been allowed under Ext.P2 final decree and on the objections of the judgment debtor, when W. P. C. No.34285 of 2008 -5- correction of decree was sought for the decree was amended allowing separate possession of the shares of the plaintiffs, the question may naturally arise as to whether the decree for recovery of possession will run from the date of the final decree as originally passed or only from the date on which the amendment was effected in the decree whereunder alone separate possession of the shares was allowed to be had. The above contention has necessarily to be allowed to be taken up by the judgment debtor on the execution side untrammelled by the observations on that aspect made by the court in Ext.P5 order whereby the amendment was allowed. Giving that liberty to the petitioners/defendants, this Writ Petition has only to be disposed of and I do so without notice to the respondents as issuing notice to the several respondents in this Writ Petition will only result in W. P. C. No.34285 of 2008 -6- unnecessary delay in obtaining the ultimate relief. The petitioners shall produce a copy of this judgment before the execution court with notice to the counsel for the respondents as this Writ Petition is being disposed of without notice to the respondents. 5. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-