Dismissed

K. P. Mohanan v. Chandra Mohan

Kerala HC7 Aug 2020OP(C)/1049/2020

Case brief

AI extract

What is this about?

The High Court disposed of two petitions regarding a partition suit stayed pending execution of a Lok Adalat award. The Court held that the Trial Court should interpret the award to determine exclusive rights.

What did the court decide?

Petitions dismissed; Trial Court directed to interpret the Lok Adalat Award and proceed with the partition suit without being fettered by the earlier order in the execution petition.

K. P. Mohanan Vs Chandra Mohan — Partition | Kerala HC (2020)

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942

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OP(C).No.2706 OF 2019

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AGAINST THE JUDGMENT AND DECREE IN OS 486/2003 DATED 05-09-2019 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA

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PETITIONER/PETITIONERS/DEFENDANTS/JUDGMENT DEBTORS:

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K.P.MOHANAN, AGED 71 YEARS, S/O.PURUSHOTHAMAN, KONULLI HOUSE, KALAMASSERRY P.O., ERNAKULAM.

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BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN SRI.S.JAYAKUMAR SMT.K.P.AMRUTHA SMT.ANITHA MATHAI MUTHIRENTHY

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RESPONDENT/PLAINTIFF & DEFENDANT:

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CHANDRA MOHAN, S/O.KUNJAN VAIDYAN, KARIMBIL HOUSE, MUTHEDATHUKAVU KARA, VAIKOM VILLAGE, VAIKOM TALUK -686 141.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.08.2020, ALONG WITH OP(C).1049/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).Nos.2706/2019 & 1049/2020

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942

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OP(C).No.1049 OF 2020

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AGAINST THE JUDGMENT AND DECREE IN OS 809/2014 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA

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PETITIONER/DEFENDANT/JUDGMENT DEBTOR:

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K.P.MOHANAN AGED 72 YEARS, S/O.PURUSHOTHAMAN, KONULLI HOUSE, KALAMASSERRY P.O., ERNAKULAM DISTRICT.

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BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN SRI.S.JAYAKUMAR SMT.K.P.AMRUTHA

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RESPONDENT/PLAINTIFF/DECREE HOLDER:

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CHANDRA MOHAN S/O.KUNJAN VAIDYAN, KARIMBIL HOUSE, MUTHEDATHUKAVU KARA, VAIKOM VILLAGE, VAIKOM TALUK, PIN - 686 141.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.08.2020, ALONG WITH OP(C).2706/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).Nos.2706/2019 & 1049/2020

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JUDGMENT

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I am considering and disposing of the

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afore two original petitions jointly,

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since the factual factors are analogous

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and the prayer sought are interlayer.

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Both these original petitions have

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been filed Shri.K.P.Mohanan against Shri.Chandra Mohan.

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It is the specific case of

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Shri.K.P.Mohanan that an extent of 1 Acre of land at Kalavoor Village was purchased

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by him and Shri.Chandra Mohan jointly;

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but that on the allegation that certain amounts were due from him, Shri.Chandra Mohan had filed O.S.No.486 of 2003 on the

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files of the Additional Munsiff,

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Alappuzha. He says that this suit was compromised between the parties, leading to an Award under the aegies of the Lok

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Adalath conducted by the District Legal Service Authority, Alappuzha, a copy of

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OP(C).Nos.2706/2019 & 1049/2020

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which is on record as Ext.P1 in both

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these original petitions.

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According to the petitioner, the

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effect of Ext.P1 Award is that

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Shri.Chandra Mohan will have to convey to him the entire 1 Acre of land, on him depositing an amount of Rs.1,35,000/-, as mentioned therein. As per him, he has now deposited this money, as was allowed by this Court through the judgment in O.P(C)No.2011 of 2014, a copy of which

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has been appended to O.P(C)No.1049 of 2020 as Ext.P2.

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The grievance of Shri.K.P.Mohanan

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is that, in spite of this, Shri.Chandra

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Mohan is refusing to convey his share in the property and that even without doing so, he filed O.S.No.809 of 2014 before

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the Munsiff’s Court, Alappuzha, seeking a partition of the said property. Shri.K.P.Mohanan asserts that the attempt

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OP(C).Nos.2706/2019 & 1049/2020

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of Shri.Chandra Mohan is to obtain 50%

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share in the property, even though he is not entitled to any such, consequent to the afore mentioned Award of the Lok

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Adalath.

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The petitioner says that he,

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therefore, preferred I.A.No.1 of 2020 in O.S.No.809 of 2014 seeking that the trial of the said suit be stayed under the provisions of Section 10 of the Civil Procedure Code (CPC for short), until the execution proceedings in O.S.No.486 of 2003 is completed. He then admits that he had earlier filed E.A.No.220 of 2018 in the Execution Petition that was then pending in O.S.No.486 of 2003, under the provisions of Section 47 of the CPC, asserting that Ext.P1 Award grants him the entire rights over the property and for a consequential declaration to such effect; but that the same has been

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OP(C).Nos.2706/2019 & 1049/2020

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dismissed by the Munsiff’s Court, through

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an order dated 05/09/2019, a copy of which is appended as Ext.P3 in O.P(C)No.1049 of 2020.

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Shri.K.P.Mohanan thus assails the

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order of the Munsiff’s Court in E.A.No.220 of 2018 in E.P.No.267 of 2019 in O.S.486 of 2003 through O.P(C)No.2706 of 2019; while he challenges the order of the said Court refusing stay of the trial of O.S.809 of 2014, through O.P(C)No.1049 of 2020.

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Even though notice has been accepted by Shri.Chandra Mohan in O.P(C)No.1049 of 2020, he has not been served in O.P(C)No.2706 of 2019. I,

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however, proceed to dispose of these matters because Shri.Chandra Mohan has neither entered appearance nor he is present in person for arguing O.P(C)No.1049 of 2020 and also because,

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OP(C).Nos.2706/2019 & 1049/2020

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in the nature of the directions that I

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propose herein, it would not cause any prejudice to him.

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I have heard Shri.Jacob Thomas,

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learned counsel appearing for

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Shri.K.P.Mohanan quite in detail.

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Shri.Jacob Thomas, learned

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counsel submits that the cause of action and the subject matter of both O.S.No.809 of 2014 and the E.P. in O.S.No.486 of 2003 are one and the same; and therefore, that Section 10 of the CPC would apply. He says that, as is clear from Ext.P1 Award, Shri.Chandra Mohan was obligated

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to convey his share in the property to his client after receiving Rs.1,35,000/-. He says that since his client has already

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deposited this money as per the directions of this Court in O.P(C)No.2011 of 2014 (Ext.P2 in O.P(C)No.1049 of 2020), the Trial Court ought to have

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OP(C).Nos.2706/2019 & 1049/2020

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executed the Award by ordering

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Shri.Chandra Mohan to convey his share in the property.

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Shri.Jacob Thomas thus asserts

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that had the Execution Court issued appropriate orders to give effect to Ext.P1 Award, the subsequent suit, namely O.S.No.809 of 2014, filed by Shri.Chandra Mohan seeking partition of the property, would become not maintainable, since it is clear that he has no further rights on the property. The learned counsel thus contents that the Trial Court ought to have allow his application under Section 10 of the CPC.

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Even when I hear Shri.Jacob

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Thomas on the afore lines, it is ineluctable that his client's case is

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built on Ext.P1 Award. Even a cursive look through the said Award, renders it

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at least prima facie evident that what

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OP(C).Nos.2706/2019 & 1049/2020

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the parties agreed for is not in the

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manner as is now asserted before me. Pertinently, to a pointed question as to the contents of Ext.P1 Award, Shri.Jacob

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Thomas, conceded that there appears to be

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an error therein and that what was intended was that the entire property would vest in his client, consequent to the payment mentioned therein. He says that his client will be able to establish this appropriately before the Trial Court

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and prays that the Execution Petition in

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O.S.No.486 of 2003 be directed to be

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taken up and disposed of at the earliest.

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The above being said, I do not

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propose to say anything further on this issue, lest it should influence the Trial Court in any manner.

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Suffice to say that the fate of O.S.No.809 of 2014, filed by Shri.Chandra

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Mohan for partition of the property,

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OP(C).Nos.2706/2019 & 1049/2020

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would depend on the interpretation that

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Shri.K.P.Mohanan is able to successfully provide to the terms of Ext.P1 Awardsince he asserts that, through it, the

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property exclusively becomes his; and consequently thus Shri.Chandra Mohan cannot seek a partition. However, this is a matter of evidence and not something that the Execution Court can do in any E.P that may be filed in O.S.No.486 of 2003 since it can only follow its content

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as available; though certainly, Shri.K.P.Mohanan will be at liberty to execute the same as per law as he is entitled. In fact, Shri.Jacob Thomas, his

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learned counsel submits that a fresh

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E.P., namely E.P.No.65 of 2020 has already been filed in the said suit and that the same is pending.

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The conspectus of the above

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discussion makes it clear that

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OP(C).Nos.2706/2019 & 1049/2020

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Shri.K.P.Mohanan can certainly defend O.S.No.809 of 2014, being the partition

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suit filed by Shri.Chandra Mohan based on Ext.P1 Award and he can also seek the said Award to be enforced as per law, through the Execution Court in O.S.No.486 of 2003.

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However, in the order dated 05/09/2019, namely Ext.P3 in O.P(C)No.1049 of 2020, the Trial Court has already taken the view that Ext.P1

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Award does not offer Shri.K.P.Mohanan the benefit that he is now claiming and that, at the best, he can only claim half rights over the property in question. I am afraid that this order cannot be set aside by this Court at this stage, since by doing so, the subsequent suit filed by Shri.Chandra Mohan, namely O.S.No.809 of 2014 will become frustrated.

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I am, therefore, of the firm view

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OP(C).Nos.2706/2019 & 1049/2020

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that Shri.K.P.Mohanan must impel all his

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contentions based on Ext.P1 Award in O.S.No.809 of 2014, so that the said Court can decide whether the rights of

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the parties are equal over the plaint schedule property as claimed by Shri.Chandra Mohan; or if

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Shri.K.P.Mohanan can assert exclusive

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rights over the same, based on the terms of Ext.P1 Award. While doing so, the said Court will act unfettered and untrammeled

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by anything stated in the order dated 05/09/2019 in E.A.No.220 of 2018 in E.P.No.267 of 2009 in O.S.No.486 of 2003, namely Ext.P3 in O.P(C)No.2706 of 2019; and will proceed with the trial of the said suit as per law and after affording necessary opportunity to both sides.

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Needless to say, since I have not

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found affirmatively in favour of either parties, all their contentions are left

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OP(C).Nos.2706/2019 & 1049/2020

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open to be urged before the Trial Court in O.S.No.809 of 2014, thus leading to a final judgment and decree therein as expeditiously as is possible.

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The afore original petitions are ordered to such extent.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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MC/11.8.2020

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OP(C).Nos.2706/2019 & 1049/2020

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APPENDIX OF OP(C) 2706/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE ORDER PASSED BY THE LOK ADALAT. EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 19/03/2018 IN OP(C) NO.2011/2014. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 29/10/18 IN E.A.NO.220/18 IN E.P.NO.267/2009 IN O.S.NO.486/2003.

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RESPONDENT'S/S EXHIBITS:

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NIL

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OP(C).Nos.2706/2019 & 1049/2020

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APPENDIX OF OP(C) 1049/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE ORDER PASSED BY LOK ADALAT DATED 24.06.2014. EXHIBIT P2 A TRUE COPY OF THE ORDER IN OP(C) NO.2011/2014 DATED 19.03.2018. EXHIBIT P3 A TRUE COPY OF THE ORDER IN E.A.NO.220/18 IN E.P.NO.267/2009 IN O.S.NO.486/2003 DATED 05.09.2019.

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EXHIBIT P4 A TRUE COPY OF THE ORDER IN IA 1/2020 IN O.S.NO.809/2014 DATED 15.06.2020.

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RESPONDENT'S/S EXHIBITS:

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NIL

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(TRUE COPY) PA TO JUDGE

K. P. Mohanan v. Chandra Mohan

Case brief

What is this about?

What did the court decide?

K. P. Mohanan v. Chandra Mohan

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

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