IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 10119 of 2009(O) ------------------------------------ AS.81/2006 of PRINCIPAL SUB COURT,KOCHI OS.287/1994 of PRL.MUNSIFF COURT, KOCHI .................... PETITIONER(S): -------------------------- 1. PHALGUNAN N.K., S/O.KUTTAPPAN, AGED 61 YEARS, NADEETHARA HOUSE, LIGHT HOUSE COLONY, APPANGADU, NJARAKKAL POST, KOCHI-682 505. 2. MOHANAN, S/O.PARAMU, AGED 53 YEARS, NIKATHITHARA HOUSE, ELANKUNNAPUZHA P.O., PALLAMPILLY. BY ADV. MR.C.P.PEETHAMBARAN RESPONDENT(S): ------------------------- 1. THANKAMMA, W/O.VASU, KOVATHITHARA HOUSE, APPANGAL, NJARAKKAL, ERNAKULAM DISTRICT. 2. PADMANABHAN, S/O.KODIYANI, OTTATHARA HOUSE, APPANGAD, NJARAKKAL, PRESIDENT OF AN UN-REGISTERED ASSOCIATION, CALLED SREE BHAYYAKKARA BHAGAWATI DHARMODHARAM PULAYA SAMAJAM APPANGAD, NJARAKKAL, ERNAKULAM DIST.(ADDRESS IS IN CORRECT, SICNE HE IS NOT THE PRESENT PRESIDENT). 3. LALAN, S/O.VIRUNNAN, VALIYATHARA HOUSE APPANGAD, NJARAKKAL, SECRETARY OF AN UN-REGISTERED ASSOCIATION, CALLED SREE BHAYYAKKARA BHAGAWATI DHARMODHARAM PULAYA SAMAJAM, APPANAGAD, NJARAKKAL, ERNAKULAM DISTRICT.(THE ADDRESS IS IN CORRECT, SINCE HE IS NOT THE PRESENT SECRETARAY). 4. WILSON JOSEPH, S/O.LATE JOSEPH, KALLUMADATHIL HOUSE, OODARAKKAL,NJARAKKAL. ADV. MR.S.VINOD BHAT FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10119/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITION IN EA. 388/2006 IN E.P. 96/2006 IN OS. 287/1994 OF PRL. MUNSIFF COURT, KOCHI. P2:- COPY OF THE ORDER DTD. 4.11.06 IN EA. 388/06 IN EP. 96/2006 IN OS. 287/94 OF PRL. MUNSIFF COURT, KOCHI. P3:- COPY OF THE EP. 96/2006 IN OS. 287/94 OF PRL. MUNSIFF COURT, KOCHI. P4:- COPY OF THE APPLICATION IN. INA 1360/2008 IN AS. 81/2006 OF SUB COURT, KOCHI FILED BY THE PETITIONERS . P5:- COPY OF THE ORDER DTD. 7.8.08 IN IA. 1360/08 IN AS. 81/06 OF SUB COURT, KOCHI P6:- COPY OF THE JUDGMENT IN AS. 81/2006 DTD. 7.8.08 OF SUB COURT, KOCHI. P7:- COPY OF THE IA. 496/2009 IN AS. 81/06 FILED BY THE PETITIONERS BEFORE THE SUB COURT, KOCHI. P8:- COPY OF THE IA. 497/2009 IN AS. 81/2006 FILED BY THE PETITIONERS BEFORE THE SUB COURT, KOCHI. TRUE COPY PA. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.10119 OF 2009 -------------------------- Dated this the 13th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for records leading t o issuance of Exts.P5 and P6 from the Sub Court, Kochi-5 and set aside Ext.P5. ii) Issue such other writ, order or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of this case and in the interest of justice. 2. Petitioners are the appellants in A.S No. 81 of 2006 on the file of the Sub Court, Kochi. That appeal was preferred by them against the dismissal of a claim petition filed in the execution proceedings in E.P No.96 of 2006 in W.P.(C).No.10119 OF 2009 Page numbers O.S No.287 of 1994 on the file of Principal Munsiff Court, Kochi. The decree granted in the suit was one for recovery of possession. These petitioners claim some right over the decree scheduled property as worshipers of a temple, the subject matter covered by the decree. The claim petition was dismissed for the reason that plaintiff had sued the defendants in a representative capacity and so much so it was binding on the claim petitioners as well. In the appeal preferred, the first respondent, the decree holder, who was no more even at the time of filing of the claim petition was shown as late, but as represented by his son. His son was the 5th respondent in the appeal. When the appeal came up for hearing, an objection that the first respondent who was no more was shown as represented by his son and the other legal heirs of the first respondent other than 5th respondent was not made parties was raised to challenge its maintainability. The appellate court, accepting that objection, dismissed the appeal. Dismissal of W.P.(C).No.10119 OF 2009 Page numbers the appeal on the above ground styled as a judgment is impeached in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Though Ext.P6 is styled as a judgment, at the most, it can be considered only as an order rejecting the appeal as not maintainable. In other words, sustaining of the objection canvassed lead to the rejection of the appeal and not of a decision on the merits of the appeal. One of the legal representatives of the first respondent was already impleaded in the party array as 5th respondent. It is also brought to my notice, in the execution petition filed by the decree holder, 5th respondent had been impleaded as second decree holder on the death of his father, the first respondent. The only mistake that appears to have been committed by the appellant is showing the first respondent who was no more as represented by his son. The W.P.(C).No.10119 OF 2009 Page numbers appellate court should have permitted the appellant to correct that mistake. Dismissal of the appeal for that reason cannot be sustained. Setting aside Exts.P5 and P6 order, appellate court is directed to restore the appeal and dispose it in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv