IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRP.No. 151 of 2009() --------------------- OS.304/2007 of ADDL.MUNSIFF'S COURT,CHERTHALA .................... PETITIONER(S): 2ND DEFENDANT: ---------------------------------------------------- T.B. UNNIKRISHNAN, S/O. BHARGHAVAN PILLAI, AGED 43 YEARS, KAMALA NIVAS, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPZHA DISTRICT. BY ADVS. DR.V.N.SANKARJEE, MR.V.N.MADHUSUDANAN. RESPONDENT(S): PLAINTIFF, 1ST DEFENDANT: ----------------------------------------------------------------------- 1. DON BOSCO WELFARE SOCIETY, REPRESENTED BY ITS PRESENT DIRECTOR, SECRETARY FR.P.D. THOMAS, S/O. DEVARAJ, AGED 36, DON BOSCO WELFARE SOCIETY, PALLURUTHY, KOCHI-6. 2. REJITHA.R @ REJITHAMMA, W/O.BABU RAJ, AGED 42 YEARS, SARADA KRISHNA BHAVANAM (KOCHU VELIYIL), AROOR VILLAGE, NOW RESIDING AT PALLIPPATTU HOUSE, NEAR N.C.C KAVALA, THURAVOOR, CHERTHALA TALUK, ALAPPUZHA DISTRICT. R1 BY ADV. MR.JOSE TOM C. KANDATHIL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.532/2009 IN CRP.NO.151/2009 DISMISSED 16/06/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.151 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 16th June, 2009 ORDER The revision is directed against an order passed by the Additional Munsiff Court, Cherthala in O.S.No.304/07 by which overruling the objections raised by the present petitioner/2nd defendant in the suit that the suit is barred by res judicata, the learned Munsiff held the suit to be maintainable. Correctness of that order is impeached contending that the present plaintiff is an assignee of the first defendant under a sale deed after a sale over the property in execution of a decree was obtained by the 2nd defendant, and confirmed by the court. It is the further case of the petitioner/2nd defendant that pursuant to the sale, the property covered by the suit previously belonging to the first respondent was delivered over to him through court. Though relevant documents relating to the sale and delivery through court were produced, without adverting to those aspects, the learned Munsiff has passed the impugned order holding the suit as maintainable is the grievance raised to challenge the order. 2. I heard the learned counsel for the petitioner and also the first respondent. Though notice was served on the 2nd respondent, CRP No.151/09 - 2 - she remained absent. Learned counsel for the first respondent submitted that the sub division number shown in the sale certificate and also delivery kachit relied on by the petitioner to claim title over the property are different from the property over which the first respondent had obtained title under a sale deed from the 2nd respondent herein, the 1st defendant in the suit. Having regard to the submissions made and also perusing the order passed by the learned Munsiff holding the suit to be maintainable, I find, the cardinal issue involved has not been properly appreciated with reference to the materials produced to enter a definite finding whether the suit claim is barred by res judicata. The question to be looked into is whether the subject matter involved in the suit was the property which was brought to sale by the 2nd defendant in execution of her decree appealed against the first defendant and if so any conveyance effected by the first respondent in favour of the plaintiff or any other person after such sale has to be appreciated taking note that the assignee of the judgment debtor is also bound by the sale effected in execution. I do not want to express any opinion on the merits of the issue canvassed by the petitioner/2nd defendant. But as it is seen, learned Munsiff has not examined the materials in the proper CRP No.151/09 - 3 - perspective and the impugned order having been passed without taking note of the legal principles applicable, it cannot be sustained. The order impugned is set aside, directing the learned Munsiff to examine the issue afresh in the light of the materials produced by both sides and pass appropriate orders within a span of six weeks from the date of receipt of a copy of this order. Communicate a copy of this order to the court below forthwith. The revision is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE