Dismissed

V.S.Babu v. Suhara Sayed Mohammed

Kerala HC4 Jun 2024CRP/257/2023

Case brief

AI extract

What is this about?

Petitioner challenged trial court orders dismissing review petitions against decrees in two partition suits. Conceding reviews were not maintainable as the decrees were appealable, and relying on Rahimal Bathush v. Ashiyal Beevi, the High Court dismissed the revisions with liberty to file first appeals, with time spent pursuing reviews to be condoned.

What did the court decide?

Liberty granted to petitioner to challenge the decrees dated 20.10.2020 before the appellate court, with time spent pursuing review applications condonable.

V.S.Babu Vs Suhara Sayed Mohammed — Partition | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

¶4

TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946

¶5

CRP NO. 257 OF 2023

¶6

AGAINST THE ORDER DATED 29.03.2023 IN RP NO.5 OF 2021 IN O.S. NO.923/2008 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT,ERNAKULAM

¶7

REVISION PETITIONER/PETITIONER IN RP/PLAINTIFF:

¶8

V.S.BABU
AGED 57 YEARS
S/O. SAYED MUHAMMED,HOUSE NO.36/1074 DAYA MANZIL,
JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
B.ANUSREE(K/000951/2016)
MEERA P.(K/000191/2019)
AISWARYA MOHAN(K/274/2020)

¶9

RESPONDENTS/RESPONDENTS IN RP/DEFENDANTS:

¶10

1SUHARA SAYED MOHAMMED
AGED 75 YEARS
W/O. LATE SAYED MOHAMMED, HOUSE NO.43/2560.
ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI 682 018
AND ALSO RESIDING AT HOUSE NO.36/1074 DAYA
MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI,
PIN - 682017

¶11

2C.S. TAHIRA
AGED 58 YEARS
W/O. AZEEZ, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,
MASJID LANE, KOCHI, PIN - 682018
3AZEEZ
AGED 65 YEARS
S/O ABDU, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,

¶12

¶13

CRP No.257 of 2023 & CRP No.260 of 2023

¶14

MASJID LANE, KOCHI, PIN - 682018

¶15

4SAJU JACOB
AGED 57 YEARS
S/O JACOB, CHAKKALAKKAL HOUSE, 36/836-A, AMBEDKAR
COLONY, KALOOR, ERNAKULAM, KOCHI -682017. ALSO
HAVING ADDRESS AT CHAKKALAKKAL HOUSE,
THRIKKANARVATTOM KARA, ERNAKULAM NORTH P.O,
PIN - 682018

¶16

5MERCY SAJU
AGED 56 YEARS
W/O SAJU JACOB, CHAKKALAKKAL HOUSE, 36/836- A,
AMBEDKAR COLONY, KALOOR, ERNAKULAM, KOCHI -
682017. ALSO HAVING ADDRESS AT CHAKKALAKKAL
HOUSE, THRIKKANARVATTOM KARA, ERNAKULAM NORTH
P.O, PIN - 682018

¶17

6SUNIL KUMAR
AGED 53 YEARS
NEEHARAM, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE,
KALOOR, ERNAKULAM, KOCHI -682017 ALSO HAVING
ADDRESS AT NEEHARAM, T.C 8/734, GOWRI NAGAR,
PONGAMOODU, MEDICAL COLLEGE P.O,
THIRUVANANTHAPURAM, PIN - 695011

¶18

7JASMINE JOSEPH
AGED 46 YEARS
W/O JOLLY T.G, VATTASSERIL HOUSE, AMBEDKAR COLONY
ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -
682017.ALSO HAVING ADDRSS AT VATTASSERIL HOUSE,
ULLOOR, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM,
PIN - 695011

¶19

8BIJU MATHEW
AGED 48 YEARS
S/O K.J.MATHEW, MULLAPPILLIL HOUSE, AMBEDKAR
COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM,
KOCHI -682017 AND ALSO HAVING ADDRESS AT
MULLAPPILLIL HOUSE, MURICKASSERY P.0, VATHIKUDY
VILLAGE, UDUMBANCHOLA, IDUKKI, PIN - 685604

¶20

9JOLLY T.G
AGED 53 YEARS
S/O K.M.GEORGE, THOPPIL HOUSE, AMBEDKAR COLONY
ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -
682017 AND ALSO HAVING ADDRESS AT THOPPIL HOUSE,
THAIKATTUKARA, ALUVA, ERNAKULAM, PIN - 683106

¶21

¶22

CRP No.257 of 2023 & CRP No.260 of 2023

¶23

10MERCY FRANCIS
AGED 60 YEARS
W/O FRANCIS PARAYIL HOUSE, AMBEDKAR COLONY ROAD,
JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -682017
AND ALSO HAVING ADDRESS AT PARAYIL HOUSE,
THAIKATTUKARA, ALUVA, ERNAKULAM, PIN - 683106
BY ADVS.
SULFIA M.A
P.A.ABDUL JABBAR
MUHAMMED SHAFFI(K/1201/2012)
SHAHIM BIN AZIZ(K/557/2016)
EHLAS HALEEMA C.K.(K/001446/2021)
ABDUL JALEEL.A(K/166/2003)

¶24

THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 04.06.2024, ALONG WITH CRP.260/2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶25

¶26

CRP No.257 of 2023 & CRP No.260 of 2023

¶27

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶28

PRESENT

¶29

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946

¶30

CRP NO. 260 OF 2023

¶31

AGAINST THE ORDER DATED 29.03.2023 IN R.P. NO.3/2021 IN
OS NO.7 OF 2006 OF ASSISTANT SESSIONS COURT/I ADDITIONAL
SUB COURT, ERNAKULAM

¶32

REVISION PETITIONER/PETITIONER IN RP/2ND DEFENDANT:

¶33

V.S.BABU
AGED 57 YEARS
S/O. SAYED MUHAMMED, HOUSE NO.36/1074 DAYA MANZIL
JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
B.ANUSREE(K/000951/2016)
MEERA P.(K/000191/2019)
AISWARYA MOHAN(K/274/2020)

¶34

RESPONDENTS/RESPONDENTS IN RP/PLAINTIFF & 1ST DEFENDANT:

¶35

1C.S. TAHIRA
AGED 58 YEARS
W/O. AZEEZ, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,
MASJID LANE, KOCHI, PIN - 682018

¶36

2SUHARA SAYED MOHAMMED
AGED 75 YEARS
W/O. LATE SAYED MOHAMMED, HOUSE NO.43/2560,
ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI AND
PRESENTLY RESIDING AT HOUSE NO.36/1074 DAYA

¶37

¶38

CRP No.257 of 2023 & CRP No.260 of 2023

¶39

MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI
682017., PIN - 682018
BY ADVS.
P.A.ABDUL JABBAR
SULFIA M.A.
MUHAMMED SHAFFI(K/1201/2012)
SHAHIM BIN AZIZ(K/557/2016)
EHLAS HALEEMA C.K.(K/001446/2021)
ABDUL JALEEL.A(K/166/2003)

¶40

THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 04.06.2024, ALONG WITH CRP.257/2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶41

¶42

CRP No.257 of 2023 & CRP No.260 of 2023

¶43

Dated this the 4^th day of June, 2024

¶44

ORDER

¶45

[CRP Nos.257/2023 & 260/2023]

¶46

The common order passed by the Additional Sub Court-

¶47

I, Ernakulam (for short ‘the trial court’) in R.P. No.3/2021 in O.S. No.7/2006 and R.P. No.5/2021 in O.S. No.923/2008 are

¶48

under challenge in the above Civil Revision Petitions.

¶49

The petitioner herein is the 2^nd defendant in O.S. No.7/2006 and the plaintiff in O.S. No.923/2008 in the trial court. Both suits are for partition. Both the judgments were challenged before this Court in O.P.(C) No.2867/2017. This Court as per the Judgment dated 05.03.2019 set aside the judgment and decree dated 06.03.2010 and remanded the matter to the trial court for fresh disposal. Thereafter, by common judgment, dated 20.10.2020 the trial court decreed O.S. No.7/2006 and dismissed O.S. No.923/2008. Instead of challenging those decree and judgment in first appeal, the petitioner filed review petitions as R.P. No.3/2021 and R.P.

¶50

¶51

CRP No.257 of 2023 & CRP No.260 of 2023

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No.5/2021 before the trial court. The trial court dismissed both those review petitions as per the impugned order.

¶53

Heard both sides.

¶54

The learned counsel for the petitioner fairly concedes that the review petitions are not maintainable inasmuch as the impugned decree and judgment in the review petitions are appealable under Order 41 of the Code of Civil Procedure. The learned counsel for the petitioner has invited my attention to the latest decision of the Supreme Court in Rahimal Bathu and others vs. Ashiyal Beevi [2023 LiveLaw (SC) 829]. In the said judgment, it was held that where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time

¶55

¶56

CRP No.257 of 2023 & CRP No.260 of 2023

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spent in diligently pursuing the review application can be condoned by the court to which an appeal is filed. In view of the dictum laid down in the above decision, these Civil Revision Petitions are dismissed with liberty to the petitioner to challenge the decree and judgment dated 20.10.2020 in O.S. No.7/2006 and O.S. No.923/2008 before the appellate court. The time spent in diligently pursuing the review applications can be condoned by the appellate court as laid down in the above decision.

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These Civil Revision Petitions are accordingly dismissed with the above observations.

¶59

Sd/-

¶60

DR. KAUSER EDAPPAGATH JUDGE

¶61

V.S.Babu v. Suhara Sayed Mohammed

Case brief

What is this about?

What did the court decide?

V.S.Babu v. Suhara Sayed Mohammed

Case brief

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What did the court decide?

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