Dismissed

K.T.Thomas v. Alphonse Thomas

Kerala HC3 Jul 2012Ex.SA/10/2012

Case brief

AI extract

What is this about?

The Court held that when a first appellate judgment remands a case to the executing court under Order XLI Rule 23 CPC, the remedy is an appeal from the order under Order XLIII Rule 1 (u), not a Second Appeal. The Second Appeal was dismissed, and original documents were returned to the appellant to file the proper appeal.

What did the court decide?

Second Appeal dismissed; original documents returned to appellant; registry to return documents; pending interlocutory applications dismissed.

K.T.Thomas Vs Alphonse Thomas — Execution and Attachment | Kerala HC (2012)

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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 THOMAS P.JOSEPH

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TUESDAY, THE 3RD DAY OF JULY 2012/12TH ASHADHA 1934

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Ex.SA.No. 10 of 2012 ()

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AS.49/2011 of SUB COURT, PALA OS.601/1996 of MUNSIFF'S COURT, ERATTUPETTA

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APPELLANT(S)/RESPONDENT NO. 2/2ND DECREE HOLDER:

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K.T.THOMAS

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S/O. THOMAS, KOOTTUMKAL HOUSE

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ARUNOOTTIMANGALAM KARA, THALAPPALLAM VILLAGE.

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BY ADVS.SRI.P.R.VENKETESH

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SRI.P.R.RAJA

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RESPONDENT(S)/APPELLANT/ADDL. 7TH JD:

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ALPHONSE THOMAS

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S/O. THOMAS, KOOTTUMKAL HOUSE, ULLANADU KARA BHARANANGANAM VILLAGE-686651..

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THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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Ex.S.A. No.10 of 2012

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-------------------------------------Dated this the 3^rd day of July, 2012. JUDGMENT

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Heard the learned counsel for the appellant.

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The Second Appeal arises from the judgment of learned Sub Judge, Pala in A.S.No.49 of 2011 setting aside the order on E.A.No.25 of 2010 in E.P.No.47 of 2009 in O.S.No.601 of 1996 of the court of learned Munsiff, Erattupetta and remitting E.A.No.25 of 2010 to the executing court with a direction for suo motu reopening of E.A.No.64 of 2009 (which I am told, is an application to implead legal representatives of deceased 1^st judgment debtor, filed along with the execution petition itself while those legal representatives were shown as additional judgment debtors in the execution petition).

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Since judgment of the first appellate court is one remanding the case to the executing court as provided under Rule 23 of Order XLI of the Code of Civil Procedure (for short, “the Code”), remedy of the appellant is not to file a Second Appeal but, to file an Appeal from the Order as provided under Rule 1 (u) of Order XLIII of the Code, ofcourse raising substantial questions of law if any involved in the matter.

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In view of that, the Second Appeal cannot be sustained.

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Ex.SA No.10/2012

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Learned counsel requested that the original documents produced along with the Second Appeal may be returned to the appellant so that he could file an Appeal from the Order. I am inclined to allow the request.

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Resultantly this Second Appeal is closed without prejudice to the right of appellant to challenge the impugned judgment by of Appeal from the Order as above stated.

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Registry shall return the documents produced along with the Second Appeal to the appellant forthwith.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

K.T.Thomas v. Alphonse Thomas

Case brief

What is this about?

What did the court decide?

K.T.Thomas v. Alphonse Thomas

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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