Allowed

Rosy v. Ouseph Varkey

Kerala HC4 Feb 2013OP(C)/244/2013

Case brief

AI extract

What is this about?

This petition challenged a trial court order dismissing applications for appointment of a commissioner and stay of execution in a partition suit. The High Court set aside the dismissal due to a contradiction between a preliminary decree and a later modified decree where the petitioner had been excluded from the appeal. The proceedings were remitted for fresh consideration pending another appeal.

What did the court decide?

The common order dismissing applications I.A.Nos. 1242, 1243, and 1812 of 2012 was set aside, and those applications were remitted to the Munsiff for fresh decision pending R.S.A.No.57 of 2013. Execut

Rosy Vs Ouseph Varkey — Partition | Kerala HC (2013)

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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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MONDAY, THE 4TH DAY OF FEBRUARY 2013/15TH MAGHA 1934

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OP(C).No. 244 of 2013 (O)

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AGAINST THE ORDER/JUDGMENT IN OS.416/1975 of MUNSIFF COURT, PERUMBAVOOR DATED 08-12-2012

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PETITIONER:

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ROSY, AGED 68 YEARS W/O.THE LATE ANTONY, C/O.REJI.C.P, CHALAYIL HOUSE CITIZEN 2ND A CROSS ROAD, AYYAPPANKAVU, CRA-38 KOCHI-18.

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BY ADVS.SRI.V.L.SHENOY SRI.L.JAYAWANTH

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RESPONDENTS:

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OUSEPH VARKEY, PUTHUSSERI @ THARIAKU, PIRARUR KARA MANICKAMANGALAM (NOW MATTOOR VILLAGE), ALUVA.

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OUSEPH KOCHAPPU, PUTHUSSERI @ THARIAKU, PIRARUR KARA MANICKAMANGALAM (NOW MATTOOR VILLAGE), ALUVA.

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OUSEPH ANTHONI, PUTHUSSERI @ THARIAKU, PIRARUR KARA MANICKAMANGALAM (NOW MATTOOR VILLAGE), ALUVA.

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AMMINNI, D/O.OUSEPH, PUTHUSSERI @ THARIAKU, PIRARUR KARA MANICKAMANGALAM (NOW MATTOOR VILLAGE), ALUVA.

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THRESSIA, W/O.POULOSE KALLUKKARAN, KIDANGOOR KARA ANGAMALY VILLAGE.

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ELIAMMA, D/O.OUSEPH, PUTHUSSERI @ THARIAKU, PIRARUR KARA MANICKAMANGALAM (NOW MATTOOR VILLAGE), ALUVA.

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R2 TO 6 BY ADV. SRI.DINESH R.SHENOY

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R2 TO 6 BY ADV. SRI.G.HARIKRISHNAN (TRIPUNITHURA) R2 TO 6 BY ADV. SRI.R.V.RAHUL

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 244 of 2013

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APPENDIX

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PETITIONER(S) EXHIBITS

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P1TRUE COPY OF THE PRELIMINARY DECREE DATED 11.7.2007 IN A.S.NO.32/2007 OF SUB COURT, PERUMBAVOOR.

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P2TRUE COPY OF THE I.A.NO.1242/2012 IN O.S.NO.416/1975 OF MUNSIFF'S COURT, PREUMBAVOOR.

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P3TRUE COPY OF THE JUDGMENT DATED 09.07.2010 IN R.S.A.973/2007 OF THIS HON'BLE COURT.

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P4TRUE COPY OF THE FINAL DECREE IN I.A.2305/2010 IN O.S.416/1975 DATED 2.1.2012.

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P5TRUE COPY OF JUDGMENT DATED 26.11.2012 IN O.P[C]NO.4000 OF 2012 OF THIS HON'BLE COURT.

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P6CERTIFIED COPY OF THE ORDER DATED 18.12.2012 IN O.A.NOS.1243/2012, I.A.NO.1242/2012 AND I.A.NO.1812/2012 IN O.S.NO.416/75.

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RESPONDENTS' EXHIBITS : NIL

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True Copy

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P.A to Judge

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THOMAS P.JOSEPH, J. =========================

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O.P(C).No.244 of 2013

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============================ Dated this the 04^th day of February, 2013

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J U D G M E N T

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Respondents are served. Respondents 2 to 6 appear through counsel.

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Petitioner is the additional 7^th defendant in O.S.No.416 of 1975 of the Munsiff Court, Perumbavoor where Ext.P1, preliminary decree was passed allotting 1/7 share to the petitioner. Petitioner filed Ext.P2, application for passing final decree pursuant to Ext.P1, preliminary decree which according to the petitioner, has become final. While so, petitioner learned that first respondent challenged Ext.P1, preliminary decree in the first appellate court which dismissed that appeal. Against that, first respondent filed R.S.A.No.973 of 2007 in this Court which resulted in Ext.P3, judgment. Petitioner was deleted from the array of parties in R.S.A.No.973 of 2007. This Court modified preliminary decree of the trial court.

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Pursuant to Ext.P3, judgment and the modified preliminary decree of this Court, trial court has passed Ext.P4, final decree.

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O.P(C).No.244 of 2013

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Petitioner, along with Ext.P2, application - I.A.No.1242 of 2012 for passing final decree, filed I.A.No.1243 of 2012 for appointment of advocate commissioner to make the division. He filed I.A.No.1812 of 2012 to stay execution of Ext.P4, final decree.

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At one stage, petitioner approached this Court in O.P(C). No.4000 of 2012. This Court disposed of that original petition by Ext.P5, judgment dated 26.11.2012 directing that Ext.P2, application - I.A.No.1242 of 2012 filed by the petitioner could be considered under Order XXI Rule 97 of the Code of Civil Procedure (for short, “the Code”).

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Learned Munsiff has dismissed Ext.P2, application and I.A.Nos.1243 of 2012 and 1812 of 2012 by Ext.P6, common order. That order is under challenge.

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Learned counsel for petitioner contends that Ext.P3, judgment of this Court in R.S.A.No.973 of 2007 or Ext.P4, final decree passed by the trial court pursuant to Ext.P3, judgment cannot bind petitioner since he was not a party in Ext.P3, judgment or, in the final decree proceeding which resulted in Ext.P4, final decree. It is contended that therefore so far as petitioner is concerned, Ext.P1, preliminary decree will stand and the trial court was bound to pass a final decree pursuant to that preliminary

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O.P(C).No.244 of 2013

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decree so far as share of petitioner is concerned. In that view of the matter, dismissal of I.A.Nos.1243 and 1812 of 2012 by Ext.P6, common order cannot be sustained. It is also pointed out by learned counsel that respondents 2 to 6 had challenged Ext.P4, final decree in A.S.No.43 of 2012 in the Sub Court, Perumbavoor but, that appeal was dismissed against which respondents 2 to 6 have filed R.S.A.No.57 of 2013 which is pending in this Court.

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I have heard learned counsel for respondents 2 to 6 also.

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The facts above stated are not in dispute. Now, the consequence is that so far as petitioner is concerned, he could probably make a claim for passing of a final decree as prayed for in Ext.P2, application pursuant to Ext.P1, preliminary decree notwithstanding that the preliminary decree was modified by this Court in Ext.P3, judgment and that was followed by the trial court passing Ext.P4, final decree. Obviously, it is because of that contradiction that this Court in Ext.P5, judgment directed that Ext.P2, application for passing final decree can be treated as one under Order XXI Rule 97 of the Code.

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The contradiction has to be cleared at some stage. Otherwise it may create difficulties in the matter of final allotment and execution of the decrees as well.

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O.P(C).No.244 of 2013

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Learned counsel for petitioner submits that either the appellants in R.S.A.No.57 of 2013 could make petitioner as additional respondent or, petitioner could seek impleadment as additional respondent in that appeal. I leave that matter for decision in R.S.A.No.57 of 2013.

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In the light of the above, Ext.P6, common order cannot be sustained and is liable to be set aside. I.A.Nos.1242 of 2012, 1243 of 2012 and 1812 of 2012 are to be disposed of on merit after the decision in R.S.A.No.57 of 2013.

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Resultantly this original petition is allowed as under:

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(i) Ext.P6, common order dated 18.12.2012 on I.A.Nos.1242, 1243 and 1812 of 2012 in O.S.No.416 of 1975 of Munsiff Court's, Perumbavoor are set aside. Those applications are remitted to the learned Munsiff for fresh decision after decision of R.S.A.No.57 of 2013.

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(ii) Learned Munsiff is directed to keep those applications alive until disposal of R.S.A.No.57 of 2013.

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(iii) Needless to say that execution of Ext.P4, final decree will also stand in abeyance until disposal of the above said applications.

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THOMAS P.JOSEPH, JUDGE

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Sbna

Rosy v. Ouseph Varkey

Case brief

What is this about?

What did the court decide?

Rosy v. Ouseph Varkey

Case brief

What is this about?

What did the court decide?

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