IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WP(C).No. 20427 of 2010(O) -------------------------- OS.1715/1984 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): --------------- FRANCIS, S/O.THIMATHI,CHANDI HOUSE, MISSION QUARTERS, THRISSUR -680001. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. LISSY MECHERY, D/O.ITTIACHIAN M.A., MADICHINI HOUSE,NO.17,MAVELIPURAM,KAKKANADU P.O., ERNAKULAM DISTRICT PIN-682030 2. MERCY MECHERY, D/O.ITTIACHAN M.A., W/O.KURIAKOSE, KIZHAKKOTTU HOUSE, SOUTH EROOR, THRIPUNITHURA P.O.,ERNAKULAM DISTRICT PIN-682306. 3. DAISY MECHERY,D/O.ITTIACHAN M.A., W/O.JOSE KADAVIL, KALLARACKAL KADVIL, UDAYAMPURAM P.O.,VAIKOM.686143. 4. USHA MECHERY, D/O.ITTIACHAN M.A., W/O.GEORGE CHERIAN, MALIAKKAL HOUSE, CHEERAKADA TEMPLE ROAD, ALUVA,ERNAKULAM DISTRICT 5. DR.JOSE,MACHERY ANTONY, KURIACHIRA, THRISSUR,680006. 6. JOSE, S/O.KIDACHINI THOMAS, KIDICHINI HOUSE, MALA THRISSUR-680732 7. FR.ANTONY MECHERY, S/O.MECHERY VARUTHUNNY, NOW VICAR OLLUR FORANE CHURCH, OLLUR, THRISSUR-680306. WP(C) NO.20427/2010 2 8. STELLA MECHERY, D/O.ITTIACHAN M.A., W/O.JACOB, MECHERY HOSUE,RICE BAZAAR, THRISSUR - 680001. 9. LENCIMOL MECHERY, D/O.ITTIACHAN M.A., RESIDING AT C-6/12 OXFORD VILLAGE, COMFORT WANA WADE, PUNE, MAHARASHTRA, HAVING ADDRESS IN KERALA AT H.NO.33/1337F,MADAPPATTU ROSF PONNATHERIPARAMBIL,CHALLIKAVATTOM,VENNALA P.O., KOCHI-682028. 10. SUSI THIMATHI, W/O.LATE THIMATHI, CHANDI HOUSE, MISSION QUARTERS, THRISSUR-680001. 11. SOBHA, D/O.LATE THIMATHI, CHANDI HOUSE MISSION QUARTERS THRISSUR-680001. 12. SHEENA, D/O.LATE THIMATHI, CHANDY HOSUE,MISSION QUARTERS, THRISSUR-680001. 13. JOHN T.CHANDY, S/O.LATE THIMATHY, CHANDY HOUSE, MISSION QUARTERS, THRISSUR-680001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.20427 of 2010 -------------------------------------- Dated this the 1st day of July, 2010. JUDGMENT Relief prayed for in this Writ Petition is a direction to the learned District Judge, Thrissur to number Ext.P2, C.M.Appeal and to decide the same on merit. That appeal was preferred against Ext.P1, order dated 28.01.2010 on a batch of applications for review filed in E.P.No.1410 of 1998 in O.S.No.1715 of 1994 of the court of learned Principal Munsiff, Thrissur. Claim petitioners who contended that delivery was effected on a previous date while direction given by the executing court was to effect delivery on 21.08.2009. Claimants sought review of the said order. Executing court allowed the applications. The common order was challenged by the petitioner/decree holder by filing a C.M.Appeal, according to the learned counsel for petitioner as provided under Order 43 Rule 1(w) of the Code of Civil Procedure (for short, “the Code”). Learned counsel submits that the C.M.Appeal was initially numbered as 39 of 2010 but, later the number was struck off and without giving petitioner an opportunity to address arguments as to maintainability of the C.M.Appeal the memorandum of C.M.Appeal was returned vide order dated 26.03.2010. According to the learned counsel, the order is bad in law in so far as it is against Order 43 Rule 1 (w) of the Code and since it is passed without hearing the petitioner. WP(C) No.20427/2010 2 2. Though relief sought for in the Writ Petition is only to direct learned District Judge to number the appeal, as it is seen that the appeal has been returned obviously as it is not maintainable according to the learned District Judge, I am persuaded to take into account the subsequent event of returning of memorandum of appeal rather than asking petitioner to file a separate petition. 3. I am not going into the question whether the order under challenge is subject to a Civil Miscellaneous Appeal as the learned counsel contends since that is a matter to be decided by the learned District Judge at first instance. But it is seen that memorandum of appeal was returned on 26.03.2010 and there is nothing on record to show that it is after hearing petitioner. Certainly petitioner has to be given for an opportunity to address arguments regarding maintainability of C.M.Appeal. In view of that, the order dated 26.03.2010 returning memorandum of C.M.Appeal has to be set aside. The matter has to go back to the learned District Judge for fresh consideration. Resultantly this Writ Petition is allowed and the order dated 26.03.2010 of the learned District Judge, Thrissur returning the memorandum of C.M.Appeal (originally numbered as 39 of 2010) is set aside. Petitioner shall re- submit the memorandum of C.M.Appeal, if he is so advised in the court of WP(C) No.20427/2010 3 learned District Judge within a week from this day in which case learned District Judge shall pass appropriate order as to the maintainability of the appeal after hearing learned counsel for petitioner as well. THOMAS P.JOSEPH, Judge. cks