C.I. Koshy vs Abraham Thomas

Thomas P. Joseph, J.—Respondent though served, has not appeared.

Petitioner is the plaintiff in O.S. No. 38 of 2000 of the court of learned Munsiff, Pathanamthitta. He sued respondent for fixation of boundary of the suit property and based on Ext.P3, report and plan learned Munsiff has passed an exparte judgment and decree (Exts.P4 and P4(a)). As per that, boundary of the property claimed by petitioner was fixed along ATHCD line. Realising that there is apparent mistake in the boundary fixed by learned Munsiff, petitioner filed I.A. No. 1009 of 2008 (Ext.P5) to remit Exts.P3, report and plan to the Advocate Commissioner, get the mistake in that report and plan corrected and to correct the judgment and decree fixing boundary in the proper manner. According to the petitioner his entitlement is over 55= cents as per Ext.P1, settlement deed but the court below has erroneously fixed total extent of land belonging to the petitioner as 58 cents. The purport of Ext.P5, application was to exclude the 2= cents covered by shoprooms which also has been shown as part of property as per Ext.P1, settlement deed. Learned Munsiff has passed Ext.P6, order stating that petitioner has not shown any provision of law to the notice of learned Munsiff to allow the prayer and that the court has no authority to correct the judgment "as prayed for". That order is under challenge in this proceeding.

Learned Counsel contends that the mistake in the judgment and decree fixing boundary arises from the mistakes in Ext.P3, report and plan. Learned Counsel has invited my attention to paragraph No. 14 of Ext.P5, application where it is stated that on account of inadvertence of the counsel petitioner was not able to give necessary instruction on time and that the report and plan submitted by the Advocate Commissioner (Ext.P3) are not correct. The prayer in Ext.P5, application is to remit the report and plan to the Advocate Commissioner, get a proper report and plan and fix boundary based on such report and plan. It is also prayed that property belonging to the petitioner may be identified as per Ext.P1, settlement deed.

I am not persuaded to think that these matters will come within the purview of Section 152 or even Section 153 of the CPC (for short, "the Code"). It is not as if there is any error in the judgment or decree as contemplated in Section 152 of the Code but, the request virtually is to re-open the case, remit Ext.P3, report and plan, get a proper report and plan in accordance with Ext.P1, settlement deed and the plaint schedule descriptions and fix the boundary. That cannot be done u/s 152 or 153 of the Code. Hence learned Munsiff is justified in observing that the judgment (and decree) cannot be corrected "as prayed for". Remedy of petitioner is either to seek a review of judgment and decree if that is permissible on the facts of the case and as the law provides or, challenge the exparte judgment and decree in appeal if the boundary fixed as per that judgment and decree is not in accordance with Ext.P1, settlement deed and the plaint schedule, get the case re-opened, get Exts.P4 and P4(a) set aside, get Ext.P3, report and plan remitted for appropriate corrections if any as circumstances warranted and to pass fresh judgment and decree. Hence without prejudice to that right of petitioner, this petition is closed. In considering condonation/exclusion of delay in filing the appeal or seeking review as the case may be, it will be open to the petitioner to request the court concerned to exclude/condone the period during which this proceeding was pending in this Court.