Writ petition challenging an order dismissing an application to pass a preliminary decree in a succession suit. The court held that maintainability of the suit must be decided before passing a preliminary decree under CPC.
Writ petition dismissed; trial court directed to proceed with the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930
WP(C).No. 22593 of 2007(M) -------------------------OS.153/2005 of II ADDL.SUB COURT,KOZHIKODE ....................
PETITIONER: PETITIONER
N.NITHYA, D/O LATE KARUNAKARAN VYDIAR, W/O T.PRAVEEN, AGED 37 YEARS, RESIDING IN "AVYAYA", POST NARIPATTA, VIA KALLACHI, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.
BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY
RESPONDENTS: RESPONDENTS
(...2/-)
(2)
(...3/-)
(3)
AGED 43 YEARS, SOUBHAGYA, BHAJANAKOLI ROAD, CHALAPPURAM, KOZHIKODE-2.
(...4/-)
(4)
REPRESENTED BY ITS SECRETARY, POST PANNIYANNOOR, VIA CHOCKLI, THALASSERY TALUK, KANNUR DISTRICT.
BY ADV. SRI.V.V.SURENDRAN FOR R2
SRI.P.A.HARISH FOR R2
SRI.P.V.JYOTHI PRASAD FOR R11
SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 SRI.S.R.DAYANANDA PRABHU FOR R37 SRI.K.K.JAYARAJ NAMBIAR FOR R33
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER’S EXHIBITS:-
RESPONDENTS’ EXHIBITS:- NIL
Okb/-
//TRUE COPY//
P.A. TO JUDGE
M. SASIDHARAN NAMBIAR, J.
W.P(C). NO. 22593 OF 2007
Dated this the 15th day of July, 2008
JUDGMENT
Plaintiff in O.S. 153 of 2005 on the file of Sub Court, Kozhikode, daughter of late Karunakaran Vydiar, is the petitioner. This petition is filed under Article 227 of Constitution of India challenging Ext.P12 order whereunder learned Sub Judge dismissed I.A. 2408 of 2007 and 2409 of 2007, the two applications filed by petitioner, one to pass a preliminary decree straight and the other to defer crossexamination of DW1 till the preliminary decree is passed.
WPC 22593/07 2
defendants cross-examined, on the request of petitioner suit was adjourned for cross-examination of DW1 plaintiff filed the applications. Case of the petitioner is that in an administration suit Court need not decide the assets and liabilities before a preliminary decree is passed and as provided under Rule 13 of Order XX of Code of Civil Procedure a preliminary decree is to be passed and all these aspects are to be decided only at the final decree stage. It is for that purpose cross-examination of DW1 by the plaintiff was sought to be deferred till a preliminary decree is passed. Petitioner sought for passing a preliminary decree straight away which was rejected by the learned Sub Judge under Ext.P12 order.
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WPC 22593/07
and the preliminary decree should be in Form No.17 of Appendix D and before passing of the preliminary decree details of the assets or liabilities are to be ascertained. Learned counsel placed reliance on the observation of a learned Single Judge of the High Court in Ollur Bank Ltd. v. Little Flower Bank Ltd. (AIR 1954 Travancore-Cochin 399) . The portion of the judgment relied upon by the learned counsel reads:-
“Appendix D, Form No.17 is the form in
which a preliminary decree in an administration suit should be drawn up. According to that form there should be a provision in the preliminary decree for an inquiry as to what immovable property the deceased was seized of or was entitled to at the time of his death. (Vide paragraph 10). It is clear from this that it is after the passing of the preliminary decree that the Court should enquire into the question as to what were the assets the deceased person was entitled to at the time of his death”
Learned counsel stressed on the observation that it is after passing of the preliminary decree that the Court should enquire
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WPC 22593/07
into the question as to what were the assets of the deceased person at the time of his death and argued that it implies that a preliminary decree is to be passed before considering the other aspects. Reliance was also placed on the decision of a learned single Judge of Andhra Pradesh High Court in Masireddi Suryanarayana v. Akula Anasuyamma (AIR 1963 Andhra Pradesh 298).
Thankappan v. K.S. Jayan (AIR 2003 Kerala 114) where the scope of an administration suit was elaborately considered. Analyzing previous decisions of various High Courts, learned counsel appearing for petitioner submitted that if the argument of petitioner is to be accepted as and when a suit is instituted with nomenclature, suit on administration, even without a written statement is filed, a preliminary decree is to be passed which cannot be the law. It was pointed out that Rule 13 only provides that in a suit for administration before passing the final decree, Court shall pass a preliminary decree and not that Court shall pass a preliminary decree in all cases without considering whether suit for administration is maintainable.
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WPC 22593/07
Under Rule 15 of Order XX of the Code of Civil Procedure, a preliminary decree may be passed before passing of the final decree. It is because a composite decree could be passed without first passing a preliminary decree in a suit on mortgage which is not possible in a suit for administration as provided under Rule 13 of Order XX of the Code.
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WPC 22593/07
decree shall be passed before final decree and in such circumstances petitioner may be allowed to adduce evidence. It is for the petitioner to explain to the trial court under what circumstance she has reported that there is no evidence. She can seek permission of the court to adduce evidence. Trial court is at liberty to pass appropriate order if such an application is filed.
Writ petition is disposed of as above.
M. SASIDHARAN NAMBIAR, JUDGE
Okb/-
2 issues framed by the court
Whether a preliminary decree must be passed in a suit for administration of assets before determining the maintainability of the suit.
Whether the trial court erred in dismissing applications to pass a preliminary decree straightaway and to defer cross-examination of DW1.
Colour shows how this judgement treated each authority
Ollur Bank Ltd. v. Little Flower Bank Ltd.Referred¶8
Ollur Bank Ltd. v. Little Flower Bank Ltd. (AIR 1954 Travancore-Cochin 399) · Who else cites this
Masireddi Suryanarayana v. Akula AnasuyammaReferred¶9
Masireddi Suryanarayana v. Akula Anasuyamma (AIR 1963 Andhra Pradesh 298) · Who else cites this
K.K. Thankappan v. K.S. JayanRelied on¶9
K.K. Thankappan v. K.S. Jayan (AIR 2003 Kerala 114) · Who else cites this
4 provisions across 2 enactments
N. Nithya
P. P. Leelavathy
N. Dileepan
M. Sasidharan Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
M. Sasidharan Nambiar
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