IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 3464 of 2011(O) ------------------------------------- [OS.NO.919/2007 OF PRINCIPAL SUB COURT,ERNAKULAM, OS.NO.575/2003 OF I ADDITIONAL SUB COURT,ERNAKULAM] .................... PETITIONER: ------------------- MARY JOSEPH, AGED 71 YEARS, W/O. LATE JOSEPH, KADEPARAMBIL HOUSE, PONNARIMANGALAM P.O., MULAVUKAD VILLAGE, KANAYANNUR TALUK, RESIDING AT RELATIVE'S HOUSE, CHALAKKUDY & ANGAMALY. BY ADV. SRI.A.L.GEORGE. RESPONDENTS: ------------------------ 1. CLARA GEORGE, AGED 52 YEARS, W/O. GEORGE, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. THRESSIA PAILY, AGED 79, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. CELIN VARGHESE, AGED 75 YEARS, W/O.VARGHESE, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 4. K.L.SEBASTIAN, AGED 72 YEARS, S/O. LATE LONAN, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. O.P.(C).NO.3464/2011-O: 5. MARTHA NARAYANAN, AGED 66 YEARS, SHARON VILLA, KANNADIKKADU, MARADU VILLAGE, KANAYANNOOR TALUK, PIN-682 304. 6. MARY GEORGE, AGED 63 YEARS, W/O.GEORGE, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 7. VICTORIA ANTONY, AGED 60, W/O.LATE ANTONY, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 8. JOSEPH PIOUS, AGED 36, S/O. LATE ANTONY, KADEPARAMBIL HOUSE, PONNARIMANGALAM, MULAVUKADU P.O., PIN-682 504, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 9. SUNIL JOSEPH, AGED 39, S/O. LATE ANTONY, KADEPARAMBIL HOUSE, RESIDING AT PANAYIKULAM, KOONAMMAVU, PIN-683 518. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3464/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PRELIMINARY DECREE IN O.S. NO. 575/03 ON 14/12/2005 OF THE 1ST ADDITIONAL SUB COURT, ERNAKULAM. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.18857/87 DT. 20/06/2007. EXT.P.3.A: COPY OF THE JUDGMENT DT. 30/08/2008 IN O.S. 919/07 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P.3.B: COPY OF THE DECREE DT. 30/08/2008 IN 919/07 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P.3.C: COPY OF THE COMMON REPORT I.A. NO. 2409/10 (FINAL DECREE APPLICATION IN O.S. 919/07 OF THE PRINCIPAL SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3464 of 2011 --------------------------------------- Dated this 27th day of October, 2011 JUDGMENT Petitioner is the plaintiff in O.S.No.575 of 2003 of the Court of learned First Additional Sub Judge, Ernakulam and the first defendant in O.S.No.919 of 2007 of the Court of learned Principal Sub Judge, Ernakulam (which was originally filed in the Court of learned Munsiff, Ernakulam as O.S.No.399 of 2007 and transferred to the Sub Court and renumbered as O.S.No.919 of 2007). Both cases are for partition of the same property. Petitioner filed O.S.No.575 of 2003 claiming that the property was purchased by her deceased husband, Joseph and his brother, Antony jointly. A preliminary decree was passed in that case for partition. While so, other children of Lonan, the father-in-law of petitioner filed O.S.No.399 of 2007 (which was transferred to the Sub Court and renumbered as O.S.No.919 of 2007) claiming that the property allegedly purchased by the husband of petitioner and Antony was the kudikidapu of the said Lonan (father-in-law of the petitioner). During pendency of that litigation, petitioner filed W.P(C).No.18857 of 2007 requesting to quash O.S.No.399 of 2007 (when it was pending in the Munsiff's Court). The plea O.P(C).No.3464 of 2011 -: 2 :- raised was that the preliminary decree in O.S.No.575 of 2003 would operate as res judicata and bar filing of O.S.No.399 of 2007. This Court directed petitioner to raise that contention in the subsequent suit - O.S.No.399 of 2007 (renumbered as O.S.No.919 of 2007 of the Sub Court). Learned Sub Judge passed preliminary decree in O.S.No.919 of 2007. Petitioner has challenged that judgment and decree in A.S.No.17 of 2011 with I.A.No.615 of 2011 to condone the delay in filing that appeal. In the meantime, petitioner has filed this original petition challenging the judgment and decree in O.S.No.919 of 2007 (which is under challenge in A.S.No.17 of 2011. Learned counsel submitted that though this Court in Ext.P2, judgment in W.P(C). No.18857 of 2007 had directed the trial court to decide the issue regarding res judicata on account of the decree in O.S.No.575 of 2003, learned Sub Judge has not gone into that question. 2. Assuming so, that is a matter which petitioner could urge in A.S.No.17 of 2011 and get appropriate decision in the matter. Petitioner cannot, invoking jurisdiction under Art.227 of the Constitution request this Court to quash the judgment and decree passed by the learned Sub Judge. The appropriate course is to challenge that judgment and decree before the appellate O.P(C).No.3464 of 2011 -: 3 :- forum. In that situation, remedy available to the petitioner is to raise all her contention as available to her under law in A.S.No.17 of 2011. This petition cannot be sustained. Accordingly it is dismissed. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-