IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 14454 of 2009(O) ------------------------------------- OS.367/1994 of SUB COURT, PALA .................... PETITIONER(S): -------------------------- P.J.BABY, PUTHIYAPARAMBIL, ERATTUPETTA KARA, KOTTAYAM DISTRICT. BY ADVS.MR.K.RAMACHANDRAN MR.S.SREEDEV RESPONDENT(S): -------------------------- 1. ROSAMMA, PUTHIYAPARAMBIL (KOCHUPURAYIL), KALATHOOKADAVU, THALAPPULAM. 2. MARY, W/O.JOSE, CHIRAYATH, ERATTUPETTA KARA. R1 BY ADV. MR.SEBASTIAN DAVIS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14454/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMISSIONER'S REPORT DTD. 1.9.08 SUBMITTED BEFORE THE SUB COURT, PALA. P1(a):- COPY OF THE SKETCH ACCOMPANYING EXT.P1 REPORT. P2:- COPY OF THE OBJECTION S DTD. 3.10.08 SUBMITTED TO EXT.P1 REPORT. P3:- COPY OF THE ORDER DTD. 13.11.08 IN EA. 214/08 IN EP. 68/01 OF THE SUB COURT, PALA. P4:- COPY OF THE AFFIDAVIT AND PETITION IN EA. 214/08 IN EP. 68/01 DTD. 15.12.08 BEFORE THE SUB COURT, PALA. P5:- COPY OF THE ORDER DTD. 17.3.09 IN EA. 263/09 IN EP.68/01 IN OS. 367/94 OF THE SUB COURT, PALA. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.14454 OF 2009 -------------------------- Dated this the 18th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P1 to P5. ii) Set aside Ext.P5 order dated 17/03/2009 in E.A No.263/2008 in E.P No.68/01 in O.S No.367/94 of the Sub Court, Pala and direct the court below to review and reconsider Ext.P3 order by also granting the petitioner opportunity to adduce evidence. iii) Render such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. W.P.(C).No.14454 OF 2009 Page numbers 2. Petitioner is the decree holder in E.P No.68 of 2001 in O.S No.367 of 1994 on the file of the Sub Court, Pala. The decree executed is one passed in a suit for specific performance. In the execution proceedings on the application moved by the decree holder, an advocate commissioner was appointed to measure out and identify the decree schedule property. A report and plan filed by the commissioner previously was remitted on the objections raised by the parties to the proceeding. The report and plan prepared by the commissioner subsequently was also objected to by the parties, both by the decree holder and also the judgment debtor. When the objections raised to the report and plan were considered, the learned counsel appearing for the decree holder made a concession that in the property identified for conveyance towards the decree, the decree holder has no objection in providing a road having a width of W.P.(C).No.14454 OF 2009 Page numbers 10 feet for access to the property comprising the of a building of the judgment debtor situate behind. Acting upon that concession, the court passed an order remitting the report by the commissioner to identify and measure out the road as conceded. The decree holder thereafter filed a petition supported by an affidavit contending that no authority had been conferred on his counsel to make the concession made before court. He applied for review of the previous order passed by the court. That application was opposed to by the judgment debtor. The learned Sub Judge after hearing both sides dismissed the review petition. Challenging the propriety and correctness of that order, a copy of which is produced as Ext.P5, the writ petition has been filed invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.14454 OF 2009 Page numbers 2. I heard the counsel on both sides. The learned counsel for the petitioner / decree holder submitted that the learned Sub Judge went wrong in acting upon the concession purported to have been made by his counsel without getting such concession recorded by the decree holder. So much so, it is submitted, Ext.P5 order which is against the mandate as to how a concession of any of the parties to the lis has to be dealt with is liable to be set aside. On the other hand, the learned counsel for the respondent / judgment debtor contended that the concession given by the counsel was bonafide and there is no circumstance whatsoever for its review on the subsequent retraction made by the decree holder. Having regard to the submissions made and taking note of the facts and circumstances presented it has to be stated that the court below has not appreciated the challenges raised against the previous order sought W.P.(C).No.14454 OF 2009 Page numbers to be reviewed with reference to the provisions of law applicable. Order 23 Rule 3 of the Code of Civil Procedure mandates that when a compromise is made by the concession of a party, it should be recorded in writing duly signed by the parties. The Apex Court having occasion to take note of the mischief emanating from concessions made by the counsel at the time of hearings, on which decisions had been rendered by the courts has held in “Gurpreef Singh v Chatur Bhuj Goel” (1988(1) SCC 270) that the procedural mandate covered by Order 23 Rule 3 has to be scrupulously followed and the concession made at the time of hearing has to be got recorded in writing. For that solitary reason itself in the present case, the order passed by the court below acting upon the concession made by the counsel of the decree holder is liable to be set aside. Setting aside Ext.P3 and P5 orders passed by the court below, I direct the learned Sub Judge W.P.(C).No.14454 OF 2009 Page numbers to consider the merit of the objections raised to the commission report afresh and pass appropriate orders, and dispose of the execution proceedings as expeditiously as possible. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY/ P.A TO JUDGE vdv