IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 19708 of 2009(O) -------------------------- OP(TP).40/2009 of D.C & SESSIONS COURT,TRIVANDRUM OS.499/2005 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): -------------------------- 1. VIJAYENDRAN.P., S/O.PARAMESWARAN, RESIDING AT KARTHIKA BHAVAN, ULIYOOR WARD, NEDUMANGAD, NOW AT T.C.16/784, KOCHAR ROAD, MANICK GARDEN, JAGATHY P.O.,THIRUVANANTHAPURAM. 2. BINDHU, W/O.VIJAYENDRAN, T.C.16/784, KOCHAR ROAD, MANICK GARDEN, JAGATHY P.O.,THIRUVANANTHAPURAM. BY ADV. MR.V.P.K.PANICKER RESPONDENT(S): ---------------------------- 1. SIVANANDAN, S/O.MANICKAN PILLAI, NANDAVANAM PUTHEN BUNGLOW, CHOORAKKATHU PALAYAM, CHENTHITTA, THIRUVANANTHAPURAM. 2. VIJAYAN, S/O.MADHAVAN, T.C.41/1041, VILAYILVILAKATHU VEEDU, KURIYATHY, MANACAUD, THIRUVANANTHAPURAM. 3. CANARA BANK, CANTONMENT ROAD, THIRUVANANTHAPURAM. REPRESENTED BY ITS MANAGER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 19708 OF 2009 O ```````````````````````````````````````````````````` Dated this the 14th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs:- “(i) Issue appropriate order calling for the records leading to Ext.P7 order and set aside the same; (ii) Allow OP(TP) No.40/09 before the District Court, Thiruvananthapuram to transfer Ext.P1 suit to the II Additional Subordinate Judge's court, or vice versa.” 2. Petitioners are the plaintiffs in two suits, namely, OS.No.499/05 pending on the file of the I Additional Sub Court, Thiruvananthapuram, and the other OS.No.1030/08 of the II Additional Sub Court, Thiruvananthapuram. OS.No.499/05 is a suit for foreclosure of a mortgage and the other suit OS.No.1030/8, a suit for refund of advance money paid under an agreement of sale. Plaintiffs moved for an application under section 24 of the CPC for transfer of both the suits to one of the courts for joint trial, before the District Court. The 3rd respondent, WPC.19708/09 : 2 : in favour of which a mortgage over the property covered by the suits had earlier been created by the first respondent, objected to the transfer requested for. The learned District Judge, after hearing both parties, dismissed the application for transfer. Impeaching the propriety and correctness of the order dismissing the transfer petition, the writ petition has been filed invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary, and hence it is dispensed with. The first and foremost question to be considered is whether the two suits can be jointly tried as desired by the petitioner, the plaintiff in both the suits. The suit for foreclosure of mortgage is governed by Order 34 of CPC which contemplates an entirely different procedure to be followed in the decree to be passed after trial from the other suit i.e., suit for refund of the advance money under the agreement of sale. Such being the position, needless to point out the joint trial of the WPC.19708/09 : 3 : suits cannot be permitted under law. Then, the learned District Judge has also noticed that the petition for transfer was moved at a time when one of the cases came up in the special list for trial and also that the 3rd respondent Bank had already initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, for realising the debt due to the Bank availed on the security of the mortgage, the subject matter involved in both the suits. In the facts and circumstances, I find no impropriety or illegality in the order passed by the learned District Judge and the writ petition is dismissed. (S.S. SATHEESACHANDRAN, JUDGE) aks