IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 CRP.No. 747 of 2008() --------------------- AGAINST THE ORDER DATED 21/08/2008 IN EA.205/2005 IN EP 20/1978 OF THE SUB COURT, THODUPUZHA IN OS.92/1973 of IST ADDL.SUB COURT, ERNAKULAM .................... REVN. PETITIONER(S)/PETITIONER/3RD JUDGMENT DEBTOR: ------------------------------- P.V. MATHEW, AGED 75 YEARS, S/O. LATE VARGHESE, PUTHIYAKULANGARA HOUSE, EDAVETTY.P.O, THODUPUZHA TALUK. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV SRI.EAPPAN MARTIN RESPONDENT(S)/RESPONDENTS/DECREE HOLDER & JD 1 AND 2: -------------------------- 1. STATE BANK OF INDIA, REPRESENTED BY DEPUTY GENERAL MANAGER, ZONAL OFFICE, SHANKUGHAM ROAD, ERNAKULAM. 2. JOLLY GEORGE VARGHESE, PUTHIYAKULANGARA HOUSE, VAZHAKULAM, MUVATTUPUZHA TALUK. 3. THRESSIAMMA VARGHESE, W/O. LATE VARGHESE, PUTHIYAKULANGARA HOUSE, VAZHAKULAM, MUVATTUPUZHA TALUK. ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R1 SRI.P.GOPAL FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON 20/07/2009 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.747 OF 2008 (D) ----------------------------------- Dated this the 20th day of July, 2009 O R D E R The revision is directed against the order dated 21.8.2008 in E.A.No.205/2005 in E.P.No.20/1978 in O.S.No.92/1973 passed by the learned Ist Additional Sub Judge, Ernakulam. 2. The above E.A. was filed by the petitioner who was the 3rd judgment debtor in E.P.No.20/1978. The application was filed under Sections 47 and 151 of the Code of Civil Procedure, seeking an order for release of the balance portion of the mortgage property retained by the decree holder, which as a whole was brought to sale to satisfy the decree debt, and in auction purchased by the decree holder, advancing a plea that the decree has been satisfied by sale of a portion of the property by the auction purchaser/decree holder bank (1st respondent). In a proceeding taken by the CRP.747/08 2 petitioner in respect of the disputes covered by the subject matter, the apex court has passed an order enabling the petitioner to enforce his rights as available to him in law under the provisions of the CPC was his case for moving the above application for the relief claimed thereunder. The first respondent bank has filed a statement narrating the various proceedings relating to the issue raised in the revision, along with a number of documents, which are marked as R1 to R26 for reference. 3. The execution application giving rise to this revision was filed under Section 47 of CPC. The undisputed facts involved in the case can be summed up thus: The 2nd respondent, brother of the petitioner, borrowed a sum of Rs.3 lakhs from the Bank of Cochin mortgaging to the bank a property having an extent of 33 acres. The above Bank of Cochin was later amalgamated with the 1st respondent, State Bank of India. The default in repayment of the loan led to filing of three suits by the bank as O.S.Nos.57/1972, 92/1973 and 94/1973 before the Sub Court, Ernakulam for recovery of CRP.747/08 3 the loan amount with interest. The three suits were decreed and pursuant to execution in one of the suits, O.S.No.92/1973, the mortgage holding of 33 acres was brought to sale. The decree holder bank (1st respondent) purchased the property in auction for the upset price fixed at Rs.4,09,000/-. Such sale infavour of the decree holder bank was on 5.1.1980. The judgment debtor moved an application as E.A.No.26/1980 to set aside the sale. A Commissioner appointed in that proceeding determined the value of the property around Rs.13 lakhs. That execution application, after enquiry, was dismissed. Another execution application, E.A.No.68/1980 moved by the judgment debtor under Section 47 of the CPC contending that the decree is a nullity and not executable and that was also dismissed. Against the dismissal of E.A.No.26/1980, a revision was filed as C.R.P.No.540/1980, which was later converted as C.M.A.No.112/1986 before this Court and that appeal after hearing was dismissed (R8). Against the dismissal of that appeal, the judgment debtor filed S.L.P.No.1188/1987 before the apex court, but leave was declined (R9). However, in the order declining leave, the apex CRP.747/08 4 court made some observations that the petitioners are free to approach the bank authorities for indulgence. When the judgment debtor proceeded for having a settlement with the bank, one among the former directors of the Bank of Cochin moved a writ petition as O.P.No.6661/1987 before this Court contending that the mortgage property sold belongs to the depositors and shareholders of the erstwhile Bank of Cochin, and therefore, it cannot be reconveyed to the judgment debtors. In the above writ petition, the 1st respondent Bank made a submission that it has no intention to reconvey the property to the judgment debtors. The writ petition was disposed recording that submission (R12). The judgment debtor unsuccessfully challenged the dismissal of the writ petition by filing W.A.No.658/1988 (R14). The judgment debtor had moved another original petition O.P.No.1406/1991 before the High Court of Madras for release of the properties when the decree holder bank took steps to dispose of a portion of the property by sale in auction. The challenge raised was turned down with observations that it is open to the bank to consider release of the property if the entire amount due to CRP.747/08 5 the bank was recovered by sale (R15). The bank sold about 1/3 rd of the property in 1993 and got Rs.15,68,350/- towards the decree debt including interest, costs and expense, which, according the judgment debtor was only Rs.8 lakhs, but, not admitted so by the decree holder bank. The bank retained the balance property measuring about 22.19 acres of rubber plantation. The judgment debtor, thereafter instituted a suit as O.S.No.65/1993 before the Sub Court, seeking a redemption of the mortgage of the balance property remaining with the bank alleging that the entire amount due to the bank had already been realised. That suit was dismissed. A petition filed by the judgment debtor before this Court as O.P.(Arb).No.1/1997 with request for appointment of an arbitrator to resolve the disputes with the bank was also dismissed. The judgment debtor moved another application E.A.No.226/1997 under Section 47 and Order XXI Rule 90 and Section 151 of CPC to set aside the sale or in the alternative, to return the balance property to them. Among other contentions, resisting that application the bank raised the plea of limitation also in entertaining that application. The CRP.747/08 6 execution court turned down the challenge raised on limitation, and then the bank challenged that order before this Court by filing C.R.P.No.1171/1979. This Court disposed that revision directing the execution court to consider the question of resjudicata as the preliminary point (R18). Pursuant to such remand, the execution court considered the question of resjudicata and upholding that bar under law dismissed E.A.No.226/1997 (R19). The judgment debtor challenged the order of the execution court by filing C.R.P.No.2344/2004 before this Court. The revision was dismissed by order dated 6.9.2002 (R20). The judgment debtor thereafter moved a representation before the bank for release of the balance property. Since there was no response from the bank, he moved a writ petition as O.P.No.5455/2003 before this Court. That petition was dismissed by judgment dated 19.7.2004 (R22). A writ appeal preferred against the dismissal of the O.P. as W.A.No.212/2005 was also dismissed (R23). Against the judgment in the W.A., the judgment debtor filed S.L.P.No.10914/2005, but leave was declined by order dated 12.5.2005 (R24). CRP.747/08 7 4. The case of the judgment debtor is that while declining leave under Ext.R24 order, the apex court has observed that “the petitioner may enforce its rights as is available to him in law inter alia, under the provisions of the CPC”. The observations so made by the apex court conferred on him a right to move the civil court under the provisions of the CPC to get back the balance property retained by the bank is the case of the petitioner, and so much so, he filed an application E.A.No.205/2005 under Sections 47 and 151 of CPC. The 1st respondent bank filed objections to the application, in which among other contentions including the bar of limitation, resjudicata etc. it was contended that the bank is retaining the property in a fiduciary capacity as trustee for the shareholders of the Bank of Cochin and it has given an undertaking in the original petition filed by one of the shareholders of the bank that it has no intention to reconvey the property and it will be sold only in public auction. The bank also raised a specific contention that the petitioner has no legal right to claim reconveyance of the CRP.747/08 8 property and it has been so held by this Court on more than one occasion in several proceedings taken up by the judgment debtor setting forth the claim for release of the property. 5. In the enquiry on the application before the execution court, on the side of the judgment debtor, A1 to A5 were exhibited. The execution court, after hearing both sides, dismissed the application and that order is challenged in the revision. 6. I have heard the counsel on both sides. The learned counsel for the petitioner relying on Ext.R24 order, marked as A3 under the impugned order, of the apex court contended that by virtue of that order, the petitioner has been conferred a right to get back the balance property available with the 1st respondent bank by taking recourse to the provisions under the CPC, and that was done by moving the application E.A.205/2005 in E.P.20/1978. Even an observation by the Supreme Court has got is own value, and it has been stated in Ext.R24 order that the petitioner may enforce his rights under CRP.747/08 9 the provisions of the CPC. It was so observed by the apex court noticing the grave injustice meted out to him in the execution proceedings by sale of the property much in excess of the decree debt, submits the counsel. Reliance is placed on Narpat Singh etc. v. Jaipur Development Authority & another (2002 SAR (Civil) 531) to contend that the discretionary power conferred on the apex court is of widest amplitude to satisfy the demand of justice and it is a overriding power to do complete justice whereunder the apex court may generously step in to impart justice and remedy injustice, and, accordingly, by Ext.R24 order, in exercise of the above power, petitioner is given a fresh opportunity to enforce his rights by resorting to the provisions of the CPC. Without appreciating that aspect, according to the learned counsel, the court below misread the facts and circumstances and also the law and dismissed his application. To buttress the argument so canvassed reliance is placed by the counsel on some other judicial pronouncements of the apex court, namely, Ramlal and another v. Phagua and others (2005 SAR (Civil) 947), Kunhayammed v. State of Kerala (2000 (3) KLT CRP.747/08 10 354 (SC)) and D.Purushotamma Reddy and another v. K.Sateesh (2008 SAR (Civil) 889), expanding the proposition propounded to contend that all previous proceedings in respect of the mortgage property taken by the judgment debtor had no impact or bearing in considering the fresh application as the right to move the present application was conferred on him by virtue of Ext.R24 order of the apex court to rectify the grave injustice done to the judgment debtors in the sale of the property. This was a case where the decree holder knew the true value of the property but undervaluing it, it was brought to sale and was knocked down by the decree holder and that would amount to a fraud on the court, submits the counsel. Placing reliance on Marudanayagam v. Maniokavasakam (AIR (32) 1945 Privy Council 67), it is contended in such a case the court would not allow the decree holder to take advantage of the fraud whatever be the conduct of the judgment debtor. So much so, it is contended that in reversal of the order of the court below, the application moved by the judgment debtor has to be allowed directing the decree holder bank to release CRP.747/08 11 the balance property to the judgment debtor. On the other hand, the learned counsel appearing for the decree holder bank (1st respondent) submitted the bank is holding the property as a trustee on behalf of the depositors and shareholders of the Bank of Cochin, and it had already given an undertaking before the court that its possession of the property is only in a fiduciary capacity indicating in unmistakable terms that it would not do any act detrimental to the depositors and shareholders, the beneficiaries. The various proceedings hitherto taken by the present judgment debtor or cojudgment debtors which have ended in adverse orders passed against them are highlighted by the counsel to contend that the present application purportedly based on Ext.R24 order is barred by resjudicata and cannot at all be entertained. The proposition canvassed that under Ext.R24 order, the judgment debtor has been conferred some right by the apex court to file a fresh application to agitate his rights is also assailed by the counsel contending that the observations of the apex court, at the most, is only to the effect that if at all he has any right, he has to pursue his remedies by way of the CRP.747/08 12 provisions under the CPC. Inviting my attention to the documents produced by the decree holder bank, the learned counsel for the 1st respondent contended that this is yet another experimental venture by the judgment debtor to reopen the issue which has become final and conclusive advancing a new case that he has been conferred with a right to do so by the highest court of the land under Ext.R24 order. The dismissal of the application by the court below under the impugned order, it is submitted, is proper and valid and it does not call for any interference by exercise of the revisional jurisdiction vested with this Court. 7. The judgment debtor, or the co judgment debtors, who had consistently taken up one proceeding or another either through the court or directly with the decree holder bank, ever since the mortgage property given as security for the loan was brought to sale and in auction purchased by the decree holder, setting forth one or other grounds, and unsuccessful in all those attempts with conclusive decisions declaring in unmistakable terms that the sale and auction are CRP.747/08 13 unimpeachable, and they have no right to get back the property, has approached the court again moving the application EA.No.205/2005 advancing a case that the apex court while dismissing the Special Leave Petition moved against the decision in W.A.No.212/2005 of this Court has allowed the judgment debtor to enforce his rights resorting to the provisions of the CPC. Ext.R24 is the order passed by the apex court. In this context, it may be appropriate to examine whether Ext.R24 order conferred any right on the petitioner to reopen the issues already settled, which have attained finality. It is the admitted case that the judgment debtor after having been vanquished in all legal battles relentlessly fought in one forum or another approached the 1st respondent bank, presumably, upon the observations made in Ext.R16 judgment rendered by the High Court of Madras that if ultimately the bank was satisfied that all the amounts due to the bank had been recovered, it was open to the bank to consider the plea of release of the properties, for getting release of the balance properties on the premise that the entire amount due to the bank had been discharged by CRP.747/08 14 sale of a portion of a property. When the representation of the judgment debtor was under consideration, one of the former directors and a shareholder of the Bank of Cochin, which had been amalgamated with the 1st respondent bank approached this Court with a writ petition as O.P.No.6661/1987 to restrain the 1st respondent from giving back to the judgment debtor the properties purchased by the Bank of Cochin in court auction. His claim was upheld with the bank giving an undertaking that it has no intention to release the property to the judgment debtors. The challenges raised against the decision thereof which were taken upto the apex court by the judgment debtor had been negatived and found against. The shareholders of the Bank of Cochin are entitled to the distribution of the surplus assets, if any, of that bank after paying the depositors in full and none of its assets retained including the property purchased in court auction, forming part of the assets of the bank, can be released to the judgment debtor, was the case canvassed to restrain the 1st respondent bank from taking any action on the representation of the judgment debtor. The 1st respondent bank represented CRP.747/08 15 before this Court that it has no intention to settle the matters with the judgment debtor and the property would be dealt with after taking delivery by sale in auction. The statement in the counter affidavit of the 1st respondent bank and the submissions made by its counsel as indicated above was recorded by this Court and the original petition was disposed by judgment dated 18.7.1988 holding that the apprehension of the petitioner (shareholder) that there was going to be a settlement with the judgment debtor was misplaced. That judgment (R12) is produced by the 1st respondent bank. The judgment debtor challenged the above decision by filing W.A.No.658/1988 before the Division Bench of this Court. The Division Bench repelling the case advanced by the judgment debtor that the submission made by the 1st respondent bank's counsel before the learned Single Judge, which was recorded, was contrary to the actual stand of the bank which was prepared to have a negotiable settlement with the judgment debtor, held that so far as the judgment debtor was concerned, the challenges against the execution proceedings had come to an end with the final decision of the apex court. CRP.747/08 16 The Division Bench has observed thus: “In this case, the litigation has come to an end with the final decision of the Supreme Court. Therefore, there is no reasonable possibility of any litigation ................... If in these circumstances, the bank became the owner of the properties as a result of becoming the auction purchaser and the properties so purchased are far more valuable than the debt due to it, there is no reason why the State Bank should lost the benefit or advantage which it has derived, only for the purpose of favouring the appellant and the 4th respondent, who have committed default it became necessary to fight long years of litigation. Any action to the contrary could have been questioned as arbitrary and violative of Article 14 of the Constitution of India. The Division Bench found no merit in the challenge raised, and the writ appeal was dismissed.” Ext.R14 is the copy of the judgment rendered by this Court. Even thereafter the judgment debtors, one or other of them, continued their pursuit with one case or another for getting release of the property from the bank, but, all of no avail. 8. The judgment debtor approached this Court and filed O.P.No.5455/2003 complaining that his representation to the CRP.747/08 17 bank was not being considered, seeking direction for its consideration. That petition was dismissed by R22 judgment. He preferred an appeal as W.A.No.212/2005, which too was dismissed by R23 judgment. Against that judgment, he preferred Special Leave Petition before the apex court and it was dismissed under R24 order. Ext.R24 order reads thus: “Having regard to the observations of the High Court that these investigated in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, petitioner may enforce his right as are available to him in law, inter alia, under the Code of Civil Procedure. The Special Leave Petition is dismissed.” The above observations by the apex court while dismissing the SLP are canvassed to prop up his case to agitate once again before the civil court the challenge against the sale and auction of the mortgage property contending that he is entitled to get back the balance property left with the bank after sale of a portion of the property towards satisfaction of the decree debt. Judicial pronouncements referred to earlier had been relied by the learned counsel for the petitioner to CRP.747/08 18 contend that the observations made in Ext.R24 order by the apex court has binding force and it has been intentionally made to do complete justice after having noticed that some injustice had been caused to the judgment debtor. I cannot agree to the proposition canvassed by the counsel. Judgments of the Supreme Court are not to be considered as Euclids theorem blindly to be followed without reference to the facts of the case which gave rise to the decision and how far it is applicable to the case in hand. The apex court in Ext.R24 order has stated that the petitioner may enforce his rights as are available to him in law, which clearly indicate that if only he has got a right enforceable under law, then alone he is competent to seek any relief from a court of law. Whatever case the judgment debtor had to challenge the execution proceedings taken leading to the sale and auction of the mortgage property had been negatived and it has attained finality by the decision of the apex court earlier where under his Special Leave Petition against R8 order of this Court was dismissed under R9 order. No challenge against the sale or auction of the mortgage holding in favour of the CRP.747/08 19 1st respondent bank was thereafter available at the instance of the judgment debtor before any court of law. Long after the decision rendered by the apex court dismissing the SLP, which concluded whatever challenge the judgment debtor had against the sale and auction of the mortgage property, the judgment debtor again attempted to rake up and reopen the issue by filing a representation before the bank for release of the property. His attempt to have a negotiable settlement with the bank was turned down, and any such settlement on his request was also found by the Division bench of this Court as violative of Article 14 of the Constitution of India. 9. Solely banking upon the observations of the apex court in R24 order, the judgment debtor has set up a new case to resuscitate the dead issue which can never be resurrected under law. Reliance placed on the judicial pronouncements referred to above by the learned counsel for the petitioner, it has to be stated have no application to the facts of the case. Petitioner has no right either under the common law or under any Statute to reopen the claim for release of the balance CRP.747/08 20 property with the 1st respondent bank, which have been negatived after adjudication by the highest court of this land, and any attempt on his part to reopen that issue which has become final and conclusive on the pretext that the observations of the apex court granted him permission to do so, deserve to be taken note of only for its rejection, and I do so. 10. I do find considerable force in the submissions made by the learned counsel for the 1st respondent bank that it is holding the property which was brought to sale and purchased in auction as a trustee on behalf of the depositors and shareholders of Bank of Cochin, which was amalgamated with the above bank. Whatever assets of the Bank of Cochin, the operation of which was suspended by moratorium and later amalgamated to the 1st respondent bank as per the terms of amalgamation cast mandatory obligation on the 1st respondent bank to satisfy the claims of the depositors of that bank and then of the shareholders. So much so, the 1st respondent bank which holds the assets of the Bank of Cochin, does so in a CRP.747/08 21 fiduciary capacity as a trustee for the benefit of the beneficiaries, the