IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 27252 of 2010(O) AGAINST THE ORDER IN EP 94/2006 IN OS.380/2004 OF PRINCIPAL SUB COURT, ERNAKULAM. PETITIONER: --------------- RAJEEV, 33 YEARS, S/O.KARUNAKARAN, THURUTHEL HOUSE, CHOTTANIKARA P.O., KUREEKKAD VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.M.K.SUCHEENDRAN RESPONDENT: --------------- REGHU, 68 YEARS, S/O.NALLAKKAN, MANAKKAPADATHU HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 686 016. ADV. SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR (707/89) SMT.SOUMINI JAMES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF SALE AGREEMENT DATED 29.3.2003. EXT.P1(a) TRUE COPY OF SALE AGREEMENT DATED 3.4.2004. EXT.P2 TRUE COPY OF THE PLAINT IN O.S.NO.380 OF 2004 DATED 9.7.2004. EXT.P3 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.380/2004. EXT.P4 TRUE COPY OF THE CHEQUE NO.025715 DATED 28.3.2003. EXT.P4(a) TRUE COPY OF THE CHEQUE NO.025718 DATED 29.3.2003. EXT.P5 TRUE COPY OF THE AFFIDAVIT DATED 7.11.2005. EXT.P6 TRUE COPY OF THE JUDGMENT DATED 7.11.2005. EXT.P7 TRUE COPY OF DECREE IN O.S.NO.380/04 DATED 7.11.2005. EXT.P8 TRUE COPY OF E.P.NO.94/2006 DATED 28.2.2006. EXT.P9 TRUE COPY OF OBJECTION IN E.P.NO.94/2006. EXT.P10 TRUE COPY OF THE ORDER DISMISSING E.P.NO.94/2006. EXT.P11 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.4778 OF 2008 DATED 11.2.2008. EXT.P12 TRUE COPY OF ORDER IN I.A.NO.3363/2008 DATED 5.10.2009. EXT.P13 TRUE COPY OF ORDER IN E.A.NO.25/10 DATED 31.7.2010. EXT.P14 TRUE COPY OF THE OBJECTION DATED 6.8.2010 IN E.P.NO.94 OF 2006. RESPONDENT'S EXHIBITS: EXT.R1 TRUE PHOTOCOPY OF THE CERTIFIED COPY OF ORDER DATED 16.8.2010 IN E.P.NO.94/2006 IN O.S.NO.38004 OF THE SUB COURT, ERNAKULAM. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 27252 OF 2010 O ------------------------------------------------------ Dated this the 8th day of June, 2011 JUDGMENT The petitioner was the defendant in O.S.No.380 of 2004 on the file of the Court of the Subordinate Judge of Ernakulam. The suit was filed by the respondent for specific performance of an agreement for sale. The agreement was disputed by the petitioner/defendant and he filed a written statement to that effect. When the case was taken up for trial, the defendant filed an affidavit withdrawing his contentions in the written statement. The trial court decreed the suit by the judgment and decree dated 7.11.2005. 2. The defendant filed a Writ Petition challenging the execution of the decree. That Writ Petition was disposed of stating that the remedy of the petitioner is to file an appeal or a review. Thereafter, the petitioner/defendant filed an application for review as I.A.No.3363 of 2008 to review the judgment. He contended that he did not give advise to the counsel to withdraw the contentions in the written statement and withdrawal of the contentions was W.P.(C) NO.27252 OF 2010 :: 2 :: unauthorised. The defendant therefore contended that the judgment is liable to be reviewed granting him an opportunity to contest the case on the merits. The Review Petition was dismissed by the trial court. That order was challenged in W.P.(C) No.4778 of 2008, which was disposed of as per Ext.P11 judgment dated 11.2.2008. The order passed in the Review Petition was set aside on the ground that an opportunity to adduce evidence was not seen provided and that the matter requires evidence. 3. Thereafter, the petitioner/defendant was examined as PW1 and his father was examined as PW2. The counsel who appeared for the defendant at the time when he allegedly withdrew the contention, was examined as RW2. The counsel who appeared for the defendant thereafter was examined as RW1. 4. The trial court considered the oral and documentary evidence in the case and held that the defendant voluntarily withdrew his contentions. The court below noticed that RW2, who prepared the affidavit, is a lawyer having more than thirty years of practice and, at no point of time, any allegation was raised against him. The contention put forward by the petitioner that the affidavit was W.P.(C) NO.27252 OF 2010 :: 3 :: prepared on the blank signed papers kept in the office of RW2, was rejected by the court below on the basis of the evidence on record. It was held, on analysing the evidence before the court, that the affidavit was filed by the petitioner with free consent and that the petitioner himself gave instructions for filing the affidavit. 5. On the basis of the findings mentioned above, the court below dismissed the application for review as per Ext.P12 order, which is under challenge in this Original Petition. 6. The reliefs prayed for in the Original Petition are the following: “I. Set aside Ext.P7 Decree and direct the Learned Trial Court to proceed trial of the suit after taking evidence of the plaintiff and the defendant and decide the issues in the light of the evidence. II. Allow alternative prayer by modifying bank rate interest or any rate of interest which this Hon'ble Court deems just and proper. III. Direct the learned Execution Court to pass order - as to whether Ext.P7 decree is executable or not, W.P.(C) NO.27252 OF 2010 :: 4 :: when the decree has no description of the property against which specific performance is sought. IV. Grant such other reliefs which this Hon'ble Court deems fit, just, proper and necessary in the facts and circumstance of the case.” 7. The decree passed in the suit cannot be set aside by the exercise of jurisdiction under Article 227 of the Constitution of India. The proper remedy of the petitioner is either to file a Review Petition or to file an appeal. The petitioner filed a Review Petition and it was dismissed by the court below. I am of the view that the order passed by the court below is legal, proper, just and correct. The prayer for setting aside Ext.P7 decree is liable to be rejected. The alternative prayer for modifying the rate of interest also cannot be entertained in this Writ Petition. The prayer for directing the executing court to pass an order as to whether Ext.P7 is an executable decree, does not arise at all. If Ext.P7 is not an executable decree, the petitioner is free to raise that contention before the executing court. W.P.(C) NO.27252 OF 2010 :: 5 :: For the aforesaid reasons, the Original Petition is dismissed. No order as to costs. (K.T.SANKARAN) Judge ahz/