Dismissed

K.Pramod v. Sreedharan.K.P

Kerala HC15 Nov 2023OP(C)/583/2019

Case brief

AI extract

What is this about?

The Court dismissed the petitioners' challenge to an order rejecting their execution application. While acknowledging the existing decree is impermissible in light of a later affirmed counterclaim, the Court dispatched the matter by directing the lower court to issue a fresh final decree incorporating both claim and counterclaim within six months.

What did the court decide?

Original Petition dismissed without challenging Ext.P4; Petitioner left liberty to file Fresh Final Decree Application within two weeks.

K.Pramod Vs Sreedharan.K.P — Execution and Attachment | Kerala HC (2023)

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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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WEDNESDAY, THE 15TH DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945

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OP(C) NO. 583 OF 2019

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(AGAINST THE ORDER DATED 30.07.2018 IN EP NO.29/17 IN FDIA 648/14

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IN OS 177/2012 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT,

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KOYILANDY)

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PETITIONERS:

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1 K.PRAMOD, S/O. KUNHIMATHA @ SARADA, ‘PRASEETHA HOUSE’, ERAVATTOOR AMSOM DESOM, KOYILANDY TALAUK, KOZHIKODE DISTRICT - 673 525,

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(THROUGH HIS POWER OF ATTORNEY HOLDER PRASEETHA).

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2 SISTER PRASEETHA, S/O. KUNHIMATHA @ SARADA, PRASEETHA HOUSE, ERAVATTOOR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 525.

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BY ADVS.
K.LAKSHMINARAYANAN

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SMT.SATHYASHREE PRIYA EASWARAN

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RESPONDENT:

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SREEDHARAN K.P, S/O. KUNHIKANNAN,
KAREPOYIL HOUSE, MENNANIUM AMSOM,
VENGAPPATTA DESOM, KOYILANDY TALUK - 673 525.

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BY ADVS.
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 583 OF 2019

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-2-

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JUDGMENT

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The petitioners impugn Ext.P4 order,

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whereby, the learned sub Judge, Koyilandy,

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has rejected their plea for execution of a
decree in O.S.No.177/2012, on the ground
that, after the same was issued, the
counterclaim initially rejected, was allowed

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by the III Additional District Judge,
Kozhikode, in A.S.No.108/2014. The learned
Judge has thus taken the view that a fresh
Final Decree will have to be issued,
incorporating the claim and the counterclaim;
and hence that petitioners will have to file
a fresh Final Decree Application.

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–
2.Sri.K.Lakshminarayananlearned

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counsel for the petitioners, made a fair
submission before this Court today, when this

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OP(C) NO. 583 OF 2019

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-3-

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matter was taken up, that, even though his
clients have opposed Ext.P4, adverting to the
fact that nearly four years have elapsed
after that, they want the decree to be
executed at the earliest. He submitted that,
therefore, if this Court is inclined to fix a
time frame for the learned Sub Judge to act
in terms of Ext.P4, offering an opportunity

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to his client to file a Final Decree

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Application soon, he will be satisfied,
because their intent is only to obtain the
fruits of the decree at the earliest.

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3.Sri.R.Parthasarathy – learned counsel
for the respondent, in response, submitted
that Ext.P4 is irreproachable because, the
properties involved in the claim and the
counterclaim, though different, involve
overlapping interests among the parties. He

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OP(C) NO. 583 OF 2019

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-4-

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pointed out that the petitioner has only a
minor fractional right over the plaint
schedule properties while, the major balance
is with his client; and that he can also seek
reliefs like reservation and such other, if
he is so advised, even when the final decree
application is considered. He then added
that, if the afore request of the petitioner,
as made by Sri.K.Lakshminarayanan alone is
being acceded to, his client will also be
satisfied because, he also requires the

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fruits of the decree at the earliest.

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afore submissions, it is indubitable that the
Suit was originally allowed, leading to a
preliminary decree and thereafter a final
decree, however, the counterclaim being
rejected; which was taken up in Appeal before

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OP(C) NO. 583 OF 2019

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the Court of III Additional District Judge,
Kozhikode, inA.S.No.108/2014and

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subsequently allowed.

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5.Obviously, there cannot be two

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decrees with respect to the same subject

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matter; and I am, therefore, certainly of the

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view that the exercise as ordered in Ext.P4

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must be completed at the earliest,
particularly taking note of the fact that the
Suit has been pending for more than 11 years
now.

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In the afore circumstances, I order this
Original Petition, without acceding to the
challenge against Ext.P4; thus leaving
liberty to petitioner to file a Fresh Final
Decree Application with respect to both the
claim and the counterclaim; and if this is
done within a period of two weeks from the

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OP(C) NO. 583 OF 2019

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-6-

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date of receipt of a copy of this judgment,

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the learned Judge will endeavour to issue a

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new final decree thereon, as expeditiously as

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is possible, but not later than six months

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from the date of receipt of a copy of this
judgment.

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Sri.R.Parthasarathy,on behalf of the

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respondent, that his client will fully co-
operate with the final decree proceedings,
without seeking any unnecessary adjournments.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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akv

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OP(C) NO. 583 OF 2019

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-7-

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APPENDIX OF OP(C) 583/2019

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF THE DECREE DATED 24.3.14
IN OS 177/12 ON THE FILE OF THE
SUBORDINATE JUDGES COURT KOYILANDY.
EXHIBIT P2TRUE COPY OF THE FINAL DECREE DATED
24.3.14 IN FDIA 648 /14 IN OS 177/12
ON THE FILE OF THE SUBORDINATE JUDGES
COURT, KOYILANDY.
EXHIBIT P3TRUE COPY OF THE DECREE DATED 17.2.16
IN AS 108/14 ON THE FILE OF THE
ADDITIONAL DISTRICT JUDGES COURT,
KOZHIKODE.
EXHIBIT P4TRUE COPY OF THE ORDER DATED 30.7.18
IN EP 29/2017 IN FDIA 648/14 IN OS
177/12 ON THE FILE OF THE SUBORDINATE
JUDGES COURT, KOYILANDY.

K.Pramod v. Sreedharan.K.P

Case brief

What is this about?

What did the court decide?

K.Pramod v. Sreedharan.K.P

Case brief

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What did the court decide?

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