Allowed

Dhanalekshmi Bank Ltd.,Thiruvalla v. M/S.J.K.Trading Company

Kerala HC22 Feb 2008CRP/1232/2003

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition filed by a bank debtor to a decree obtained by confession. The lower court refused to amend the decree to include 'charge' wording despite the absence of opposition, holding that relief not expressly granted is refused. The revision court held this view incorrect because no contest existed, allowing the amendment to create a charge and setting aside

What did the court decide?

I.A.No.428 of 2001 allowed; impugned order set aside; no order as to costs.

Dhanalekshmi Bank Ltd.,Thiruvalla Vs M/S.J.K.Trading… — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929

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CRP.No. 1232 of 2003(F)

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AGAINST THE ORDER DATED 13/02/2003 IN IA.NO.428/2001 IN O.S.NO.19/1999 OF MUNSIFF'S COURT, PEERUMEDU

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REVN. PETITIONER: PETITIONER/PLAINTIFF:

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THE DHANALEKSHMI BANK LTD., REGISTERED OFFICE AT THRISSUR IN KERALA, BRANCH OFFICE AT THIRUVALLA, PATHANAMTHITTA DIST., REP. BY BRANCH MANAGER.

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BY ADV. SRI.P.JACOB VARGHESE SMT.V.A.GANGUJA SRI.VIVEK VARGHESE P.J.

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RESPONDENTS: RESPONDENTS/DEFENDANTS:

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M/S.J.K.TRADING COMPANY, A PARTNERSHIP FIRM HAVE IT MAIN OFFICE AT 106/XI.261, INTERNATIONAL TOURIST HOME,J.K.ROAD, THIRUVALLA, PATHANAMTHITTA DISTRICT.

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SRI.KURIAN JOSEPH, S/O. JOSEPH, MANAGING PARTNER, M/S.J.K.TRADING COMPANY, THIRUVALLA, RESIDING AT KOZHIKKUNNATHU HOUSE, MALLAPPALY EAST, THIRUVALLA, PATHANAMTHITTA DIST.

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MRS.SHERLY GEORGE @ SHERLY SOOSAN GEORGE

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W/O. GEORGEKUTTY JOSEPH, PARTNER, M/S.J.K.TRADING COMPANY, THIRUVALLA, RESIDING AT KOZHIKUNNATHU HOUSE, MALLAPPALLY EAST, THIRUVALLA, PATHANAMTHITTA DISTRICT.

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MR.GEORGEKUTTY JOSEPH,S/O.KURIAN JOSEPH, MANAGER, M/S. J.K.TRADING COMPANY, THIRUVALLA, RESIDING AT KOZHIKUNNATHU HOUSE, MALLAPPALLY EAST, THIRUVALLA, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.K.G.PAVITHRAN

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN, J.

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-------------------------------------------C.R.P. NO. 1232 OF 2003 F

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Dated this the 22^nd February, 2008

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O R D E R

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The decree holder in O.S.No.19 of 1999, on the file of the Sub Court, Peermade, filed I.A.No.428 of 2001 under Section 152 of the Code of Civil Procedure to amend the judgment and decree and thereby to incorporate the words “and by sale of the decree schedule property” in the judgment and decree at the appropriate places.

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The case of the petitioner Bank is that the suit was filed for realisation of money due from the respondents and that the Bank prayed for a charge decree. The claim put forward by the plaintiff was admitted by the defendants and accordingly, the judgment and decree were passed. However, by an accidental slip, there was an omission to include that the decree schedule property shall be a charge for the decree amount. The decree holder sought to incorporate these words in the judgment and decree so that they could have a charge over the property.

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No counter was filed by the respondents in I.A.No.428 of 2001. However, the court below dismissed the application on the ground that the relief which was not expressly granted shall be deemed to have been

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C.R.P. NO. 1232 OF 2003

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:: 2 ::

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refused forgetting the fact that there was no contest at all and that the decree was passed on confession. There is no case for the respondents that a charge was not created and that the plaintiff was not entitled to get a charge decree. The court below, in my view, was not justified in rejecting the application.

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For the aforesaid reasons, the Civil Revision Petition is allowed, the order impugned is set aside and I.A.No.428 of 2001 is allowed. No order as to costs.

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ahz/

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(K.T.SANKARAN) Judge

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K.T.SANKARAN, J.

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C.R.P.NO. 1232 OF 2003 F

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O R D E R

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22^nd February, 2008 -------------------------------------------

Dhanalekshmi Bank Ltd.,Thiruvalla v. M/S.J.K.Trading Company

Case brief

What is this about?

What did the court decide?

Dhanalekshmi Bank Ltd.,Thiruvalla v. M/S.J.K.Trading Company

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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