The High Court dismissed the execution first appeal and a connected clean-stream application. The court held that the impugned order having been quashed in a prior writ petition, an independent challenge to it could not be entertained to maintain finality.
R/A and C.M.A dismissed; appeal fails.
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 THOTTATHIL B.RADHAKRISHNAN &
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 4TH DAY OF AUGUST 2015/13TH SRAVANA, 1937
Ex.FA.No. 22 of 2015 ()
(AGAINST ORDER DATED 27.03.2015 IN E.A.NO.116/2015 IN E.P.NO.237/2012 IN O.S.NO.419/2008 BEFORE THE PRINCIPAL SUB COURT, KOTTAYAM)
APPELLANT(S)/COUNTER PETITIONER/JUDGMENT DEBTOR:
P.K.PURUSHOTHAMAN KALARICKAL HOSUE, PALLOM KARA, NATTAKOM VILLAGE KOTTAYAM.
BY ADVS.SRI.M.P.MADHAVANKUTTY SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H.
RESPONDENT(S)/PETITIONER/DECREE HOLDER:
SAJIMON PALANTHANATHU HOUSE, NATTASSERY KARA MUTTAMBALAM VILLAGE, KOTTAYAM, PIN:686 004.
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 04-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN & SUNIL THOMAS, JJ.
Ex.F.A.No.22 of 2015 and C.M.Appl.No.2415 of 2015
.................................................................... Dated this the 4th day of August, 2015.
J U D G M E N T
Thottathil B.Radhakrishnan, J.
1.Heard.
The impugned order led to yet another order, which was consequential. The appellant before us had instituted OP(C) No.1066 of 2015 seeking to quash the order impugned in this appeal and also the consequential order, which was exhibited as Ext.P14 in OP(C) No.1066 of 2015. The order impugned in this appeal was Ext.P13 in that OP(C) filed under Article 227 of the Constitution of India.
ExFA22/15
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3.OP(C) No.1066 of 2015 was decided as per judgment dated 10.06.2015 after duly adverting to and considering the relevant facts to conclude as to whether proclamation of 5 cents of property for sale was justified. The learned single Judge had come to the conclusion that the only course open to the court below was to do so, subject to whatever was stated in paragraph No.3 of the judgment dated 10.06.2015. We called for Judges' Papers of that original petition. We see that the order impugned in this appeal was specifically challenged in that OP(C) by producing the same as Ext.P13. Though the judgment in OP(C) No.1066 of 2015 does not expressly mention Ext.P13, we are clear in our mind that Exts.P13 and P14 were considered by the learned single Judge. Even otherwise; once relief is granted on the basis of Ext.P14, it goes without saying that the petitioner could not have re-agitated the matter in relation to Ext.P13, having regard to the finality attained by the judgment in OP(C) No.1066 of 2015. We are, therefore, unable to entertain the
ExFA22/15
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independent challenge to the order dated 27.03.2015 in E.A.No.116 of 2015 in E.P.No.237 of 2012 in O.S.No.419 of 2008 of the Principal Sub Court, Kottayam, which was Ext.P13 in OP(C) No.1066 of 2015. Having regard to the finality attained by the judgment in OP(C) No.1066 of 2015 and taking into consideration the directions issued thereby to the court below, this appeal cannot be entertained. For the aforesaid reasons, this appeal fails.
In the result, the C.M.Application and the appeal are dismissed.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE)
(SUNIL THOMAS, JUDGE)
jg
2 issues framed by the court
Whether an independent appeal challenging an order that was already quashed in a writ petition under Article 227 can be entertained.
Whether the finality of the judgment in the writ petition precludes re-agitating the matter regarding the impugned order.
P.K.Purushothaman Kalarickal Hosue
Sajimon Palanthanathu House
Thottathil B.Radhakrishnan
Sunil Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
