IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 23593 of 2010(O) -------------------------- IA NO.130/2010 IN CMA.32/2009 of SUB COURT,KOTTARAKKARA .................... PETITIONER(S): --------------- RAMESH KUMAR, S/O.NARAYANAN POTTY, PADINJAREMADOM, SAKTHIMANGALAM, OORAMANAKKARA, MEMURI VILLAGE, MOOVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.B.MOHANLAL SRI.C.SINOY RESPONDENT(S): --------------- 1. RAJASEKHARAN UNNITHAN, S/O.CHELLAPPAN PILLAI, POOVAPPALLIL VEEDU, PADINJATTINKARA, KOTTARAKKARA VILLAGE P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN- 691506. 2. MANOJ, NANDANAM, THURUTHIKKARA P.O., KUNNATHOOR VILLAGE, KUNNATHOOR TALUK, KOLLAM DISTRICT, PIN- 690 520. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 SRI.V.A.AJMAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.23593/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER IN IA NO.1771/2009 IN OS NO.131/2008 DATED 30.09.2009 OF THE MUNSIFF COURT, KOTTARAKKARA EXT.P2 TRUE COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.32/2009 DATED 27.10.2009 EXT.P3 TRUE COPY OF THE IA NO.1866/2009 IN CMA 32/2009 DATED 27.10.2009 FILED BY THE PETITIONER BEFORE THE SUB COURT, KOTTARAKKARA EXT.P4 TRUE COPY OF THE CHELAN RECEIPT EVIDENCING PAYMENT OF RS.62,000/- DATED 24.11.2009 EXT.P5 TRUE COPY OF IA NO.130/2010 IN CMA 32/2009 FILED BY PETITIONER BEFORE SUB COURT, KOTTARAKKARA DATED 18.1.2010 EXT.P6 TRUE COPY OF THE OBJECTION DATED 28.5.2010 FILED BY THE FIRST RESPONDENT EXT.P7 TRUE COPY OF THE ORDER IN IA NO.130/2010 IN CMA NO.32/2009 OF THE SUB COURT, KOTTARAKKARA DATED 30.6.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.23593 of 2010 -------------------------------------- Dated this the 27th day of September, 2010. JUDGMENT Respondent No.1 appears through counsel. For respondent No.2/defendant, notice has been served on the counsel appearing for him in the trial court which is sufficient service under Rule 59 of the Rules of High Court of Kerala, 1971. 2. This Writ Petition is in challenge of Ext.P7, order passed by the learned Sub Judge, Kottarakkara on Ext.P5, application (I.A.No.130 of 2010) filed in C.M.A.No.32 of 2009 seeking permission to convert the C.M.Appeal into a regular appeal against dismissal of a claim petition. Respondent No.1 filed O.S.No.131 of 2008 in the court of learned Munsiff, Kottarakkara for recovery of money against respondent No.2. In that proceeding there was an attachment ordered by the learned Munsiff. Petitioner made a claim for the property attached. That claim was dismissed against which petitioner preferred C.M.A.No.32 of 2009 before learned Sub Judge, Kottarakkara. Learning that C.M.Appeal is not maintainable and dismissal of the claim petition is to be challenged by way of a regular appeal petitioner filed I.A.No.130 of 2010 to convert the C.M.Appeal into a regular appeal. That application was dismissed vide Ext.P7, order holding that there is no provision in the Code of Civil Procedure (for short, “the Code”) to allow the application and that inherent power under Section 151 of the Code is to be exercised with respect to the procedure to be followed by the court in deciding the case before it. According to WP(C) No.23593/2010 2 the learned Sub Judge petitioner is not entitled to convert the C.M.Appeal into a regular appeal. It is contended that the view taken by the learned Sub Judge is not correct. 3. I am inclined to agree with the learned counsel. It is not as if the court lacked power to convert a C.M.Appeal into a regular appeal. In Bahori v. Vidya Ram (AIR 1978 Allahabad 299) it was held that it is within the power of the court to convert a revision into an appeal and vice versa. If that be so there is no reason to think that a C.M.Appeal cannot be converted into a regular appeal subject to payment of court fee as prescribed by the relevant provisions. I find no reason why I.A.No.130 of 2010 should not be allowed. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P7, order dismissing Ext.P5, application (I.A.No.130 of 2010) is set aside. ii. I.A.No.130 of 2010 in C.M.A.No.32 of 2009 is allowed. iii. Learned Sub Judge shall allow the C.M.Appeal to be converted as a regular appeal. iv. It is made clear that petitioner will be liable to pay court fee if any payable on the appeal as provided under law. WP(C) No.23593/2010 3 v. Interim order passed by this Court on 28.07.2010 will remain in force until the C.M.Appeal is converted into a regular appeal by the learned Sub Judge. THOMAS P.JOSEPH, Judge. cks