IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRP.No. 728 of 2008() --------------------- OS.57/2002 of SUB COURT,KATTAPPANA .................... REVN. PETITIONER(S): PLAINTIFF: --------------------------------------------------- KUNCHERIYA ALEXANDER @ KUNJAPPAN, AGED 59 YEARS, S/O. CHANDY, RESIDING AT CHERUKODE HOUSE, CHENNAMKARY KARA, KAINAKARY VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. BY ADVS. MR.K.S.HARIHARAPUTHRAN, MR.GEORGE MATHEW. RESPONDENT(S)1-12: DEFENDANTS 1 – 12: ------------------------------------------------------------------ * 1. R. JAYALAKSHMI, AGED 69 YEARS, W/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT. ( D I E D) 2. A.S.R. ALAGU KUMAR, AGED 41 YEARS, S/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT. 3. A.R.S.SUBBAIAH, AGED 38 YEARS, S/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT. ** 4. P. MALLIKA, AGED 52 YEARS, D/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK, THENI DISTRICT. ( D E L E T E D) ** 5. V. CHANDRIKA, AGED 50 YEARS, D/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK, THENI DISTRICT.( D E L E T E D) ** 6. P. SASIKALA, AGED 48 YEARS, D/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT.(D E L E T E D) ** 7. B. ALAGU SAVITHRI, AGED 44 YEARS, D/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT.(D E L E T E D) Kss ..2/- ...2... CRP.NO.728/2008 ** 8. G. PANKAJAM, AGED 46 YEARS, D/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT. (D E L E T E D) ** 9. M. SHEELA, AGED 40 YEARS, D/O.A.S.RANGASWAMY, PANKAJAM HOUSE,BODINAYAKANNUR, UTHAMAPALAYAM TALUK,THENI DISTRICT.( D E L E T E D) 10. ALEX T. GEORGE, AGED 38 YEARS, S/O. GEORGE, RESIDING AT THATTARAPARAMBIL HOUSE, CHENNAMKARAL KARA, KAINAKARI VILLAGE, KUTTANADU TALUK, NOW RESIDING AT THATTARAPARAMBIL HOUSE, KURISUPARA KARA, KALLAR VATTIYAR.P.O, ANAVIRATTU VILLAGE, DEVIKULAM TALUK. 11. V.K. JOSE, AGED 45 YEARS, S/O.V.K. KURIAKOSE, VADAKKMCHERRY HOUSE, VADAKKUMBHAGAM KARA, MANJAPPRA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. 12. JOSEPH, AGED 63 YEARS, S/O.CHANDY, CHERUKODE HOUSE, RUBY NAGAR, VAZHAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. *R2 TO R9 ARE RECORDED AS THE LR'S OF DECEASED R1 AS PER ORDER DTD. 19/03/09 ON THE MEMO FILED BY PETITIONER. **R4 TO R9 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DTD. 19/03/09 ON CRP AT THE REQUEST OF COUNSEL FOR R10. R2 & R3 BY MR.K.RAMAKUMAR, SENIOR ADVOCATE, MR.T.RAMPRASAD UNNI, MR.J.R.PREM NAVAZ. R10 BY ADV.MR.JOSE JOSEPH ARAYAKUNNEL R11 BY ADV.MR.JOHN JOSEPH, MR.E.J.THOMAS, SMT.THANUJA ROSHAN. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009 ALONG WITH WPC NO. 33073 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.33073 of 2007 and C.R.P.No.728 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 25th May, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To call for the records which lead to the issuance of Ext.P3 and to issue writ in the nature of certiorari or any other appropriate writ order or direction quashing Ext.P3; and 2. Such other relief and costs as this Hon'ble Court deems fit and proper. The petitioner is the plaintiff in O.S.No.57/02 on the file of the Sub Judge, Kattappana in which a decree for specific performance was passed directing the defendants 1 to 9 in the suit to execute a sale deed in respect of the plaint property in favour of the plaintiff within the time stipulated and in default, granting liberty to the plaintiff to realise a sum of Rs.2,10,913/- from the above defendants with 12% interest from the date of decree till date of realisation. In the above suit, defendant No.10 remained ex parte and no decree was passed against him. He had defaulted in filing a written statement in time and after he was set ex parte, before the trial commenced, he moved W.P.C.33073/07 & CRP 728/08 - 2 - an application for setting aside the ex parte order with a petition to receive his written statement. The trial judge rejected his application and later, after an ex parte decree was passed against him he again moved an application under Order 9 Rule 13 C.P.C. for setting aside that decree. The trial court dismissed that application. Against dismissal of that application, the 10th defendant preferred an appeal before the District Court, Thodupuzha and it was allowed vide Ext.P3 order on terms. The legality, propriety and correctness of Ext.P3 order is challenged by the decree holder plaintiff in the present writ petition contending that no decree was passed against 10th defendant, but only against defendants 1 to 9 and as such the order dismissing the application moved under Order 9 Rule 13 by the trial court should not have been interfered with. Meanwhile, when the petitioner had taken steps for executing the decree passed against D1 to D9 the 10th defendant brought to the notice of the execution court that the decree had been set aside in his application moved under Order 9 Rule 13 C.P.C. The learned Sub Judge, thereupon, overruling the objections raised by the plaintiff, passed an order dated 18th July, 2008 holding that the decree set aside at the instance of the 10th defendant operated as a whole, in favour of the other defendants W.P.C.33073/07 & CRP 728/08 - 3 - also, and no decree for execution survived in favour of the plaintiff. Correctness of the order passed by the learned Sub Judge as above is challenged in C.R.P.No.728/08 by the decree holder plaintiff. 2. I heard the learned counsel on both sides. Objections canvassed by the decree holder plaintiff resisting the application to set aside the decree and also to sustain the decree before the execution court had been advanced before me as well to contend that the application moved by the 10th defendant against whom no decree was passed by the court should not have been entertained and at any rate allowing of his application has the effect of only altering the decree passed by the trial court against that defendant alone, but not as against defendants 1 to 9. After going through the orders passed by the District Judge in C.M.A.No.66/07 and having regard to the submissions made by the counsel on both sides, I find no reason to hold that the discretion has been improperly exercised in allowing the application of the 10th defendant for setting aside the decree. Challenge against those orders invoking the supervisory jurisdiction of this court under Article 227 of the Constitution is not entertainable. However, I find some force in the grievance canvassed by the decree holder that in view of the order passed in the C.M.A. by the District W.P.C.33073/07 & CRP 728/08 - 4 - Judge and also the order passed by the Sub Judge in execution petition which is challenged in the revision, if proper clarifications are not given, it is likely to result in confusion and further protract the proceedings before the lower court and, thus, delay the disposal of the suit. I make it clear that whatever findings entered as against D1 to D9 under Ext.P1 judgment which have become final and conclusive in respect of which no challenge had been raised by any defendants shall be binding on those defendants. However, any proceeding even against those defendants in the suit will depend upon the decision after adjudication of issues again in trial with the 10th defendant who now has been granted opportunity to lead evidence in support of his case to resist the plaint claim. Whether the plaintiff is entitled to a decree for specific performance even as against D1 to D9, in the nature of the disputes raised, would depend upon the final decision ultimately to be arrived at by the court after the trial of the case with the 10th defendant. No other defendants will be entitled to canvass or present any other objections against the plaint claim in the trial since the findings against them have become final. Observations made by the learned Sub Judge in the execution proceedings, I make it clear will not confer any right on the defendants 1 to 9 against whom W.P.C.33073/07 & CRP 728/08 - 5 - conclusive findings have been made, except 10th defendant, in Ext.P1 judgment. The dismissal of the execution petition by the learned Sub Judge, in the facts and circumstances, cannot be found fault with and it is not liable to be interfered with. Subject to the above observations, the Writ Petition and the revision are disposed directing the learned Sub Judge, Kattappana to give the case top priority in hearing so as to have an expeditious trial and disposal of the case after affording reasonable opportunity to both sides, plaintiff and the 10th defendant, to lead evidence in support of their respective cases. At any rate, every endeavour shall be made by the learned Sub Judge to dispose the suit within a span of eight months from the date of receipt of a copy of this judgment. The plaintiff and the 10th defendant shall appear before the court below on 10th June, 2009. Communicate a copy of the judgment to the court below forthwith. srd S.S. SATHEESACHANDRAN, JUDGE