IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 OP(C).No. 1357 of 2011(O) ------------------------- AS.267/2009 of ADDL.DISTRICT COURT,KOTTAYAM OS.131/2006 of PRL.SUB COURT,KOTTAYAM .................... PETITIONER: ------------------------------- 1. JACOB V.J., LAYIKKADU VENNALIL HOUSE, PERUNNA EAST KARA, CHANGANACHERRY VILLAGE, PIN-686 102. 2. KUNJUMOL JACOB, W/O.JACOB, LAYIKKADU VENNALIL HOUSE, PERUNNA EAST KARA, CHANGANACHERRY VILLAGE-686 102. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENT(S): --------------- 1. TOM JOSEPH, KALARIPARAMBIL HOUSE, THRIKODITHANAM MURI, THRIKODITHANAM VILLAGE, CHANGANCHERRY TALUK-686 105. 2. KALARIPARAMBIL KURIES, REPRESENTED BY ITS MANAGING PARTNER TOB TOSEPH, KALARIPARAMBIL HOUSE, THRIKODITHANAM MURI, THRIKODITHANAM VILLAGE, PIN-686 105, CHANGANACHERRY. R1, R2 BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN O.P(C).1357/11 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE DECREE IN O.S.NO.131/06 DATED 23.9.08 OF PRINCIPAL SUB JUDGE, KOTTAYAM. EXT.P2: TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONERS BEFORE the DISTRICT COURT, KOTTAYAM. EXT.P3: TRUE COPY OF THE DELAY CONDONATION PETITION ANDAFFIDAVIT DATED 20.7.2009. EXT.P4: TRUE COPY OF THE SCHEDULE OF PROPERTY DATED 11.2.2009. EXT.P5: TRUE COPY OF THE ORDER DATED 29.6.2010 IN I.A.NO.1250/09 IN A.S.267/09. EXT.P6: TRUE COPY OF THE JUDGMENT IN A.S.NO.267/09 DATED 29.6.2010 OF the ADDL. DISTRICT JUDGE(SPECIAL), KOTTAYAM. /TRUE COPY/ PA TO JUDGE THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- O.P.(C).No.1357 OF 2011 ------------------------------------ Dated this the 13th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The defendants in O.S.No.131/06 of the Principal Sub Court, Kottayam are the petitioners in this O.P., filed invoking Article 227 of the Constitution of India. The subject matter of that suit was valued at Rs.3,45,500/-. Obviously, going by pecuniary jurisdiction, an appeal against the decree passed by the trial court lie only to this Court in terms of the provisions of the Civil Courts Act. However, the petitioners filed an appeal as A.S.267/09 before the District Court, Kottayam along with an application for condonation of delay in filing that appeal. They also filed certain interlocutory applications to summon witnesses in support of the application for condonation of delay. OPC.1357/11 2 2.It appears that the District Court did not notice the defect in the institution of the appeal on a ground referable to the pecuniary jurisdiction. It proceeded to take up the appeal with the application for condonation of delay and ultimately dismissed that application. 3.The defendants, on legal advise, filed R.F.A.114/11 before this Court challenging the decree in O.S.131/06. At the stage of admission, though initially defendants (appellants) took the stand that the appeal filed by them before the District Court was incompetent, on further deliberation, it was thought fit for the appellants to seek relief against the proceedings before the District Court. O.P.1357/11 was accordingly filed. 4.We are of the view that the District Court did not have jurisdiction to entertain the appeal from the decree passed in O.S.131/06 of the Sub Court, Kottayam having regard to the pecuniary limits in terms of the Civil Courts Act. The OPC.1357/11 3 District Court also did not have jurisdiction to entertain the application under Section 5 of the Limitation Act and enter on an adjudication and issuance of order thereon. Following the law laid by the Apex Court in Kiran Singh & Others v. Chaman Paswan & Others [AIR 1954 SC 340], we are of the view that the subject matter of this litigation in so far as it relates to an appeal from the decree of the trial court could not have been entertained as a subject matter before the District Court and therefore, the action taken by the court below in passing orders on the delay petition and other interlocutory applications filed in AS.267/09 are non- est. They are null and void. It is declared so. 5.In the result, this OP is allowed and the orders impugned herein are vacated. The proceedings in A.S.267/09, including the interlocutory applications therein, are declared as null and void. The District Court, Kottayam is directed to reject the appeal memorandum in A.S.267/09 and order refund of the entire court fee paid thereon subject OPC.1357/11 4 to deduction of any due commission. We make this order in preference to the order directing return of the appeal memorandum since RFA.114/11 has already been instituted before this Court against the decree of the trial court. The OP is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.15/6.