IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 OP(C).No. 4240 of 2011(O) ------------------------------------- OS.372/2010 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER (S): ---------------------- ANJALI DEVI, D/O. INDIRA BHAI, AGED 36 YEARS, PAYILKATTUSSERIL VEEDU, PRAYAR SOUTH MURI, CLAPPANA VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SMT.K.G.SAROJINI RESPONDENT(S): ------------------------ 1. M/S. STATE BANK OF INDIA, KAYAMKULAM BRANCH, REPRESENTED BY ITS PRESENT CHIEF MANAGER. 2. CHANDRAN PILLAI, S/O. PARAMESWARAN PILLAI, MATTATHU VADAKKATHIL PATHIYOORKALA MURI, PATHIYOOR VILLAGE, (VIA) KAYAMKULAM, ALAPPUZHA DISTRICT. R1 BY ADVS. SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE SRI.A.S.SAJUSH PAUL, SC FOR SBI THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD OPC NO. 4240/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN O.S. NO. 372/2010 MUNSIFF'S COURT, KAYAMKULAM FILED BY THE PLAINTIFF. EXT.P2 TRUE COPY OF THE APPLICATION I.A. NO. 441/2011 FILED IN O.S. NO. 372/2010 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT KAYAMKULAM. EXT.P3 TRUE COPY OF THE COMMISSIONER'S REPORT FILED IN CONNECTION WITH I.A. NO. 2822/2010 IN O.S. NO. 372/2010 DATED 7-01-2011 BEFORE THE MUNSIFF'S COURT, KAYAMKULAM. EXT.P4 TRUE COPY OF THE ORDER DATED 3-10-2011 IN I.A. NO. 441/2011 IN O.S. NO. 372/2010 BY THE MUNSIFF'S COURT, KAYAMKULAM. RESPONDENTS' EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE SD THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4240 of 2011 ==================================== Dated this the 21st day of December, 2011 J U D G M E N T Petitioner filed O.S. No.372 of 2010 in the court of learned Munsiff, Kayamakulam challenging steps taken by the first respondent, according to the petitioner under the SARFAESI Act. First respondent filed I.A. No.441 of 2011 (Ext.P2) before learned Munsiff contending that the civil court has no jurisdiction to entertain the suit in view of provisions of the Act since property has already been taken possession of by the first respondent. Learned Munsiff considered Ext.P2, application, was impressed by the contention raised by the first respondent and held that the suit is not maintainable. Exhibit P2, application was allowed and by the impugned order the suit was dismissed as per Ext.P4, order which is under challenge. 2. I have heard learned counsel for petitioner and learned Senior Advocate for the first respondent on maintainability of the Original Petition since in my view remedy of petitioner is to challenge the judgment and decree that follows by way of appeal as provided under the Code of Civil Procedure (for short, “the Code”). 3. Rule 2 of Order XIV of the Code states that court is O.P(C) No.4240 of 2011 -: 2 :- required to pronounce “judgment” on all issues. Sub-rule (2) of Rule 2 states that notwithstanding that the court is required to pronounce judgment on all issues, where a suit could be disposed on a preliminary issue of law only relating to the bar of suit or jurisdiction of court, the court may decide such issue as a preliminary issue and dispose of the suit. In this case finding is that the civil court has no jurisdiction and following that, learned Munsiff has dismissed the suit which amounts to a 'judgment'. Necessarily that has to be followed by a decree and therefore remedy of petitioner is not to challenge Ext.P4, order by way of this Original Petition under Article 227 of the Constitution but to prefer a regular appeal challenging dismissal of the suit as provided under law. Since statutory remedy of appeal is provided this Original Petition cannot be entertained. Original Petition is dismissed without prejudice to the right of petitioner to challenge the judgment and decree dismissing the suit by way of regular appeal as provided under law. THOMAS P. JOSEPH, JUDGE. O.P(C) No.4240 of 2011 -: 3 :- vsv