Allowed

R.Mohankumar, v. P.Sheela Remani

Kerala HC1 Feb 2022FAO (RO)/10/2019

Case brief

AI extract

What is this about?

The Special Judge held that a claim petition under Order XXI Rule 58 CPC cannot lie where no property attachment exists. Suiting for partition was not affected by attachment. The High Court allowed the appeal and set aside the lower appellate court's remand order, confirming the original dismissal.

What did the court decide?

Order of remand set aside; order of dismissal of claim petition confirmed; appeal allowed.

R.Mohankumar, Vs P.Sheela Remani — Partition | Kerala HC (2022)

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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 P.SOMARAJAN

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TUESDAY, THE 1^st DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943

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FAO (RO) NO. 10 OF 2019

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AGAINST THE JUDGMENT DATED 14.11.2017 IN AS No.43/2017 OF II

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ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM

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I.A.No.8586/2016 IN OS 1694/2013 OF I ADDITIONAL MUNSIFF COURT,

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THIRUVANANTHAPURAM

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APPELLANT/1st RESPONDENT/PLAINTIFF:

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R.MOHANKUMAR, AGED 53 YEARS,

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S/o LATE RAJAPPAN ASSARI, RESIDING AT LEKHA BHAVANAM, P.R.A-19, PAPPAD, NETTAYAM P.O., THIRUVANANTHAPURAM.

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BY ADVS. M.GOPIKRISHNAN NAMBIAR

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K.JOHN MATHAI JOSON MANAVALAN

KURYAN THOMAS

PAULOSE C. ABRAHAM

RAJA KANNAN

R.CHETHAN KRISHNA

RESPONDENTS/APPELLANT & RESPONDENTS 2 TO 6/DEFENDANTS:

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1 P.SHEELA REMANI, D/o PONNAMMA, RESIDING AT T.C 11/965-1, HILL GARDEN, NNRA-110, NALANDA ROAD, NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM – 695 003.

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2 VISWAMMAL, W/o RAJAPPAN ASARI, MOHAN NIVAS, MYTHRI NAGAR, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM- 695006.

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3 SASIKALA, D/o VISWAMMAL, MOHAN NIVAS, MYTHRI NAGAR, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM- 695006.

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4 MAHESWARI, D/o VISWAMMAL, MOHAN NIVAS, MYTHRI NAGAR, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM- 695006.

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FAO (RO) No.10 of 2019

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5 SURESHKUMAR, S/o RAJAPPAN ASARI, MOHAN NIVAS, MYTHRI NAGAR, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM- 695006. 6 SANAL KUMAR, S/o RAJAPPAN ASARI, MOHAN NIVAS, MYTHRI NAGAR, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM- 695006.

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R1 BY ADV SRI.S.NIKHIL SANKAR

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) No.10 of 2019

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JUDGMENT

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The sole plaintiff in a suit for partition came up

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aggrieved by an order of remand by the first appellate court, by which the order of dismissal in a claim petition under Order XXI Rule 58 CPC was set aside and remanded back to the trial court for fresh consideration.

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Admittedly, it is a suit for partition wherein the

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claim petitioner is not a party. No attachment was

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effected over the property at any point of time during the

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pendency of the suit or after the passing of the preliminary decree. The scope of Order XXI Rule 58 CPC

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would arise only when there is an attachment over the property by virtue of the provision contained in Order XXI CPC or under Order XXXVIII CPC. Admittedly, no order of attachment was passed either in the trial stage or in the execution stage. Necessarily, it must be understood that there is no scope for exhausting the remedy under Rule 58 of Order XXI CPC. Hence, the order of dismissal of the

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claim petition by the trial court can only be confirmed,

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FAO (RO) No.10 of 2019

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not on the ground assigned by the trial court, but on the

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grounds as mentioned above. The trial court had gone into several extraneous matters and entered its own conclusion without going into the actual impact of Order XXI Rule 58 CPC. Hence, all the abovesaid observations, conclusions and findings of the trial court will stand removed and deleted from the impugned order and it will not have any binding force on the parties. The remedy of the claim petitioner lies somewhere else. He can obstruct the delivery at the time when it is sought to be executed or he can prefer an application under Order XXI Rule 97 CPC at any appropriate stage. Without prejudice to the right of the appellant, the present order of remand is hereby set aside by confirming the order of dismissal of the claim petition. Appeal will stand allowed accordingly. No costs.

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Sd/-

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P.SOMARAJAN JUDGE

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DMR/-

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FAO (RO) No.10 of 2019

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APPENDIX OF FAO (RO) 10/2019

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PETITIONER'S ANNEXURES

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ANNEXURE A1 TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM KIMS HOSPITAL, THIRUVANANTHAPURAM.

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ANNEXURE A2 TRUE COPY OF PRESCRIPTION AND REFERENCE FOR EXPERT MANAGEMENT ISSUED BY SRI RAMA KRISHNA CHARITABLE HOSPITAL, THIRUVANANTHAPURAM.

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RESPONDENTS' ANNEXURES NIL

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// TRUE COPY //

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P.A. TO JUDGE

R.Mohankumar, v. P.Sheela Remani

Case brief

What is this about?

What did the court decide?

R.Mohankumar, v. P.Sheela Remani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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