IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 16201 of 2009(O) --------------------------------------- [OS.NO.155/1986 OF MUNSIFF'S COURT, KOTTARAKKARA] .................... PETITIONER: ------------------- VALLI REMANI, AJI BHAVAN, ERAM MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), SRI.A.R.DILEEP. RESPONDENTS: ------------------------ 1. KUNJUPILLAI PRABHAKARAN, EMPLOYED IN CFAT NO.17, BHARATHIDASAN II STREET, PALLIKKARANI P.O., CHENNAI - 601 302. 2. KUNJUPILLAI SASI, THENGUVILA VEEDU, THEKKE AMBALAKKARA, UMMANNOOR MURI, UMMANNOOR VILLAGE, KOTTARAKKARA TALUK. 3. K.LALITHAMMA, CHANTHOOR VEEDU, AYANIVELIKULANGARA THEKKU, KARUNAGAPPALLY. 4. K.NALINI, THATTOTTU PUTHEN VEEDU, KARYARA P.O., PUNALUR. 5. K.LEELA, RANI BHAVAN, VETTATHU MUKKU, KARUNAGAPPALLY. 6. K.SARALA, BINU BHAVAN, KALAYANADU P.O., PUNALUR. 7. K.J.LALGI, THENGUVILA VEEDU, AMBALAKKARA, VALAKOM. W.P.(C). NO.16201/2009-O: 8. K.J.SANTHOSHJI, THENGUVILA VEEDU, AMBALAKKARA, VALAKOM. 9. K.J.PRABHA, THENGUVILA VEEDU, AMBALAKKARA, VALAKOM. 10. K.J.SANTHAKUMARI, THENGUVILA VEEDU, AMBALAKKARA, VALAKOM. R5,R8 & R10 BY ADVS. SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16201/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 155/1986 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P.2: COPY OF THE PRELIMINARY DECREE DTD. 30/07/1994 IN O.S. NO. 155/1986. EXT.P.3: COPY OF THE MEMORANDUM OF APPEAL IN A.S. NO. 18/1995 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, KOTTARAKKARA. EXT.P.4: COPY OF THE DECREE DTD. 30/09/2004 IN A.S. NO. 18/95. EXT.P.5: COPY OF THE DECREE DTD. 30/09/2004 IN A.S. NO. 12/95. EXT.P.6: COPY OF THE E.P. NO. 91/07 ON THE FILE OF MUNSIFF'S COURT, KOTTARKKARA. EXT.P.7: COPY OF THE OBJECTION FILED BY THE 2NED JUDGMENT DEBTOR. EXT.P.8: COPY OF THE OBJECTION FILED BY THE 3RD JUDGMENT DEBTOR. EXT.P.9: COPY OF THE OBJECTION FILED BY ADDITIONAL JUDGEMENT DEBTORS 4 TO 11. EXT.P.10: COPY OF THE ORDER DTD. 03/03/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.16201 of 2009 ------------------------------------- Dated 17th March 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioner assails Ext.P10 order of the Munsiff's Court, Kottarakkara in EP No.91/07 in OS No.155/86. 2. The petitioner instituted OS No.155/86 which was a suit for declaration of title over Plaint A schedule property, recovery of possession and for mesne profits or in the alternative for a preliminary decree, directing partition of the Plaint A schedule property and for recovery of ½ share thereof of the plaintiff. 3. The second defendant is the husband of the plaintiff and defendants 1 and 3 are respectively, the father and brother of the husband. Plaint B schedule property, which originally belonged to the plaintiff was sold by defendants 1 and 2 promising to purchase another WPC 16201/09 2 property deriving more income, in the name of the plaintiff. But, after receiving the sales consideration of Plaint B schedule property, they did not keep their promise. Later, they offered to sell Plaint A schedule property belonging to the first defendant in lieu of the amount received as sales consideration for Plaint B schedule property. However, at the time of execution of the sale deed, it is alleged that fraudulently, the name of the second defendant was also inserted. Later, it came to the knowledge of the plaintiff that the second defendant had executed a sale deed in favor of the third defendant. It is under these circumstances that the suit came to be laid. A copy of the plaint in the suit is produced as Ext.P1. 4. Defendants 1, 2 and 3 resisted the suit. The Trial Court, after taking evidence in the case, passed a preliminary decree, allowing the plaintiff to get half her share over Plaint A schedule property with future mesne profits. The first defendant was also allowed to recover value of improvements effected by him in the portion WPC 16201/09 3 allotted to the plaintiff. A copy of the preliminary decree so passed is produced as Ext.P2. 5. Aggrieved by Ext.P2 decree, the plaintiff filed an appeal as AS No.18/1995 before the Sub Court, Kottarakkara. The first defendant also filed AS No.12/1995 before the Sub Court, Kottarakkara as against the decree passed against him. 6. Even though a settlement was arrived at between the parties at the Adalat, the second defendant failed to comply with the terms of the settlement and the case was again posted before Court. The Appellate Court by Judgment and decree dated 30.09.2004, allowed AS No.18/95 filed by the plaintiff and set aside Ext.P2 decree, declaring her title over Plaint A schedule property and allowing her to recover possession thereof with future mesne profits. Copy of the said Judgment is produced as Ext.P4. AS No.12/95 filed by the first defendant was dismissed by Ext.P5 Judgment. WPC 16201/09 4 7. It is alleged that by virtue of the Appellate Court Judgment and decree, the plaintiff was entitled to recover possession of Plaint A schedule property with future mesne profits. The decree of the Trial Court had merged with the Appellate Court decree. 8. The plaintiff took out execution as EP No.91/07 before the Munsiff's Court, Kottarakkara, seeking to have Ext.P4 decree executed. Copy of the Execution Petition so filed is produced as Ext.P6. Judgment Debtors 2 and 3 entered appearance and they raised several untenable contentions. Copy of the objections so filed by them is produced as Ext.P7. Copy of the objections filed by the third defendant is produced as Ext.P8. Since the notice sent to the first Judgment Debtor was returned unserved, substituted service was resorted to. Respondents 3 to 10 herein, who claimed to be the legal representatives of the first defendant, who is said to have died on 22.09.2004, filed EA No.118/08 for getting themselves impleaded as additional respondents in the EP. WPC 16201/09 5 That petition was allowed. It was also contended on their behalf that the first defendant died during the pendency of the appeal before the Appellate Court and therefore, the decree passed by the Appellate Court in favour of the plaintiff was against a dead person and was a nullity. Copy of the objections so filed is produced as Ext.P9. 9. The execution court without understanding the nature of the reliefs sought for and the nature of the decree that was sought to be executed, dismissed the EP holding that no final decree has been passed and the decree sought to be executed is a preliminary decree. Copy of the order so passed is Ext.P10. 10. Ext.P10 order is assailed before this Court. It is pointed out that the Court below was wrong in dismissing the EP on the ground that the decree sought to be executed was a preliminary decree. It was contended that the Court below had omitted to note that it was the Appellate Court decree that was sought to be executed which was a decree for recovery of possession with future WPC 16201/09 6 mesne profit. Therefore, there was no question of passing any preliminary decree or final decree at all. Accordingly, it was contended that the order is clearly unsustainable both on facts and in law. 11. The learned counsel for the contesting respondents pointed out that the decree that was sought to be executed is a nullity since the first defendant died during the pendency of the appeal before the Appellate Court and his legal representatives had not been brought on the party array. The Appellate Court decree is therefore, not executable at all, it is submitted. 12. The order of the Court below, dismissing the EP, i.e., Ext.P10, is clearly unsustainable in law. As rightly pointed out by the learned counsel for the petitioner herein, the decree that was sought to be executed was the Appellate Court decree directing recovery of possession over the plaint A schedule property to the plaintiff with future mesne profits. That being the position, there was no question of passing any preliminary or final decree. There WPC 16201/09 7 is only one decree. 13. As regards the question whether the decree is a nullity or not, it is for the executing court to decide, when it reconsiders the EP. That issue need not be considered by this Court in these proceedings. 14. The result is that the dismissal of the EP by the Court below is clearly unsustainable both on facts and in law and it is liable to be set aside. I do so. The Court below is directed to take back the EP on file and dispose of the same in accordance with law as expeditiously as possible. P.BHAVADASAN, JUDGE sta WPC 16201/09 8