IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 SA.No.542 of 1993 (F) -------------------------- AS.39/1989 of DISTRICT COURT, KASARAGOD OS.95/1982 of SUB COURT, KASARAGOD .................... APPELLANT/APPELLANTS/PLAINTIFFS: --------------------------------------------- M/S KOTTACHERY SARVOTHAMA SRINIVASA SHENOY AND BROTHERS, REP. BY ITS PRESENT MANAGING PARTNERS * 1. K. SREEDHARA SHENOY, AGED 75 YEARS, @ S/O K. SRINIVASA SHENOY, RESIDING AT KOTTACHERRY, BALLA VILLAGE, KANHANGAD, HOSDRUG TALUK. [DIED; L.R. IMPLEADED] -DELETED @ 2. K. VITTAPPA SHENOY, AGED 61 YEARS, S/O -DO- -DO- R/A -DO- -DO- [DELETED] @ 3. K. GANGADHARA SHENOY, AGED 40 YEARS, S/O K. RAGHAVA SHENOY, R/A -DO -DO- [DELETED] @ 4. K. KRISHNANDA SHENOY, AGED 31 YEARS, S/O K. VITTAPPA SHENOY, R/A -DO- -DO- [DELETED] @ ADDL. APPELLANT NO.5 K. RAMANATHA SHENOY, S/O LATE K. SRIDHARA SHENOY, KOTTACHERRY, BALLA VILLAGE, KANHANGAD. [DELETED] *[ADDL. APPELLANT NO.5 IS IMPLEADED AS THE LEGAL HEIR OF APPELLANT NO.1 VIDE ORDER DT.04/07/1994 ON CMP NO.1004/94] @[THE NAMES OF THE APPELLANTS 1, 2, 4 AND 5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS/APPELLANTS VIDE ORDER DT.17/10/06 IN I.A.2257/06] BY ADV. SRIA.P.CHANDRASEKHARAN SRI.T.SETHUMADHAVAN SA.No.542 of 1993 (F) -2- RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 5: ------------------------------------------------------------- ** 1. KODOTH KRISHNAN NAIR, S/O KUNHAMBU PODUVAL, AGED 78 YEARS, RESIDING AT CHANATHALA HOUSE, BADADKA VILLAGE, KASARAGOD TALUK, POST : BEDADKA 2. VELLACHI, D/O THEYI AND CHANDRAN, AGED 46 YEARS, RESIDING AT GADDAMOOLE, BEDADKA VILLAGE, KASARAGOD TALUK, BEDADKA. 3. KORAN, S/O CHANDRAN, AGED 56 YEARS, RESIDING AT GADDAMOOLE, BEDADKA VILLAGE, KASARAGOD TALUK, BEDADKA. 4. T.A. MOHAMMED KUNHI, AGED 61 YEARS, S/O T. K. ABDULKHADER, R/A -DO -DO- ADDL. R5: K. SHARADAMMA, W/O LATE KRISHNAN NAIR, CHEMARAKALLU HOUSE P.O., KARIVEDAGAM, KASARAGOD DISTRICT. ADDL. R6: K. BALAKRISHNAN NAMBIAR, S/O LATE KODOTH KUNHI- KRISHNAN NAIR, KRISHNA BHAVAN, KARIVEDAGAM POST, KASARAGOD DISTRICT. ADDL. R7: M.K. ASHOK KUMAR, S/O LATE KODOTH KUNHI- KRISHNAN NAIR, KRISHNA BHAVAN, KARIVEDAGAM POST, KASARAGOD DISTRICT. ADDL. R8: M.K. AJAYAKUMAR, S/O KODOTH KUNHI KRISHNAN NAIR, KRISHNA BHAVAN, KARIVEDAGAM POST, KASARAGOD DISTRICT. ADDL. R9: M.K.SYAMALA, W/O M. CHAKRAPANI NAMBIAR, MARIMOOLA HOUSE, MARIMOOLA POST, BENDAKA VILLAGE. ADDL. R10: M.K. SUSHEELA, W/O KODOTH BALAKRISHNAN NAIR, KODOTH HOUSE, KALANADU POST. ADDL.R11: M.K. NARAYANI AMMA, W/O KODOTH NARAYANAN NAIR, KOTTODI POST. SA.No.542 of 1993 (F) -3- ADDL.R12:- SREEDEVI NAMBIAR, W/O MELETH MADHAVAN NAMBIAR, BENDADKA VILLAGE, KUNDAKUZHI POST, KASARAGOD DISTRICT. ADDL.R13: M.K. SAVITHRY AMMA, D/O KODOTH KUNHI KRISHNAN NAIR, KRISHNA BHAVAN, KARIVEDAGAM POST. ADDL.R14: M.K.VIJAYA MOHANAN, S/O KODOTH KUNHI KRISHNAN NAIR, KRISHNA BHAVAN, KARIVEDAGAM POST. ADDL.R15: M.K.LAKSHMY KUTTY NAMBIAR, W/O M.RAMACHANDRAN NAMBIAR, MARUDOTH ESTATE, CHULLI POST, PARAPPA (VIA) KASHANGADU, KASARAGOD DISTRICT. **[ADDL. R5 TO R15 ARE IMPLEADED AS THE LRs OF THE DECEASED FIRST RESPONDENT VIDE ORDER DT.28/05/08 IN I.A.2255/06] ADV. SRI O RAMACHANDRAN NAMBIAR, DENY JOSEPH SRI.P.K.MUHAMMED FOR R4 SRI.GEEN T.MATHEW FOR R5 & R12 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ S. A. No.542 of 1993 ------------------------------------------------ Dated this the 16th day of February, 2009 JUDGMENT This is Second Appeal filed by plaintiffs 1 and 3 to 5 in O.S.95/1982 on the file of the Sub Court, Kasaragod assailing the concurrent decree passed against them by the courts below. Defendants 2 to 5 in the suit are the respondents. On the death of the first appellant, additional fifth appellant was impleaded. Later, the names of appellants 1, 2, 4 and 5 were deleted from the party array and the appeal is being prosecuted by the third appellant only. It is submitted that in partition the property obtained in court sale which is the subject matter of the dispute involved in this RSA, purchased by the first appellant on behalf of the plaintiff/firm was allotted to the share of the third appellant. The first respondent died and his LRs are S. A. No.542 of 1993 -2- impleaded as additional respondents 5 to 15 vide order on I.A.2255/06. Notice was ordered to the respondents on 22/09/93 without framing any substantial question of law. Hence, the following substantial questions of law is formulated for decision:- 1) Whether the concurrent findings of the courts below that the suit is not maintainable in view of the provisions of Order XXI Rule 101 and 103 of the Civil Procedure Code even though there was no adjudication of rights of parties on merits on application filed under Order XXI Rule 97 of the C.P.C is sustainable. 2) Whether the issuance of sale certificate to an auction purchaser under Order XXI Rule 94 of CPC enables him to recover possession of the said property by a regular suit abandoning the reliefs sought for resorting to provisions contained in Order XXI Rule 97 C.P.C. S. A. No.542 of 1993 -3- 2. The suit O.S.95/1982 was instituted by the first plaintiff/firm represented by its five partners for recovery of possession of scheduled property inter alia on the following allegations:- The plaintiff/firm obtained decree against the first respondent in O.S.44/1968 on the file of the Sub Court, Kasaragod for recovery of money. As per order on I.A.950/1968 in the said suit, plaint 'A' schedule properties which belonged to the first defendant were attached and the attachment was made absolute on 01/04/1969. In execution of the decree in the said suit vide E.P.81/1969 plaint 'A' schedule properties were purchased by K.Sreedhara Shenoy, the first partner on behalf of the plaintiff/firm in court auction on 14/10/1974 and the sale was confirmed on 16/07/1977. Plaintiff filed I.A.1092/1977 to obtain delivery of property S. A. No.542 of 1993 -4- so purchased in court auction. When the Amin went to effect delivery, defendants 2 and 3 preferred objections to the delivery and resisted delivery of 'A' schedule properties. The plaintiff thereupon filed I.A.914/1980 in O.S.44/1968 for removal of obstruction under Order XXI Rule 97 of the C.P.C. That was dismissed by the execution court on 17/09/1981. The plaintiffs alleged that the dismissal of the said I.A. by the execution court was on the ground of delay and the dismissal is not on merits and therefore, it should be deemed that no application is filed at all under Order XXI Rule 97 C.P.C and hence, Order XXI Rule 103 of CPC is not applicable and the plaintiffs are entitled to ignore the said order and recover possession of the property purchased in court auction from defendants 2 and 3 who have absolutely no right, title, possession or interest over 'A' S. A. No.542 of 1993 -5- scheduled properties. 3. On the above allegations, they prayed for a decree for recovery of possession of 'A' schedule properties on the strength of title. The first defendant remained absent and ex parte. The second defendant resisted the suit raising contentions that the plaintiff has no right to maintain a suit against the order passed on a petition under Order XXI Rule 97 of the C.P.C and his remedy was only to file an appeal against the said order which is having the force of a decree under Order XXI Rule 103 CPC and the suit is not maintainable. 4. The first defendant had right over 21 cents in item No.1 and 1.90 acres of land in item No.2. These two items of properties along with other items were outstanding on lease in favour of one K.V.Kunhiraman granted by the first defendant. The said Kunhiraman purchased landlord's rights through the Land Tribunal, S. A. No.542 of 1993 -6- Kasaragod as per order dt.28/01/1974 and thereafter, the first defendant has no right over any of the suit properties. Consequently, therefore, the auction sale does not vest any right in the plaintiffs. The suit has been filed in respect of properties which takes in the leasehold properties of K.V.Kunhiraman also and hence, K.V.Kunhiraman's L.Rs are necessary parties to the suit and the suit is bad for non-joinder of all necessary parties. The suit property along with other property belonged to Mithakshara family of a Veeroji. That family became divided as per partition deed dated 21/05/1946. The property obtained by Subboji under the said partition deed were sold to the first defendant. The total extent of the properties sold by Subboji is 1.90 acres in item No.2 and 28 cents in item No.1. The plaintiff has not derived any title or interest over the suit property. The property S. A. No.542 of 1993 -7- allotted to Madhoji under the partition deed of 1946 aforesaid were mortgaged to this defendant. Subsequently, Madhoji sold 1.26 acre to this defendant as per sale deed dt.24/03/1950. On the same day, he mortgaged the remaining properties shown as 'B' schedule in the written statement to this defendant as per kanon kuzhikanom right dt.24/03/1950. The said Madhoji simultaneously obtained kanon kuzhikanom property on lease. This defendant filed O.S.15/1953 and obtained a decree for arrears of rent and possession. The decree obtained in the said suit was put in execution and he obtained possession and recovered also a portion of the decree amount. Thereafter, equity of redemption right of Madhoji was brought to sale and it was sold in court auction and purchased by one Kookal Krishnan Nair. The said Krishnan Nair obtained only symbolical rights of the equity of redemption S. A. No.542 of 1993 -8- of properties included in the mortgage of 24/03/1950 and obtained delivery of possession on 29/10/1957 through the Munsiff's Court, Kasaragod. I.A.914/1980 filed in O.S.44/1968 aforesaid was rightly being dismissed. This defendant is in possession of property shown in 'B' schedule property in the written statement and the remaining portions are in the possession of the legal heirs of K.V.Kunhiramn. Third defendant has no right in the suit properties. The suit has been filed without any bona fides and has to be dismissed. 5. Third defendant filed a separate written statement contending that the suit is barred under Section 47 of the C.P.C. He was not a party to O.S.44/68. The first defendant in fact owned only an undivided half right in the equity of redemption. It is incorrect to say that the plaintiff is a registered firm S. A. No.542 of 1993 -9- and that Sridhara Shenoy and four others are its partners. The sale certificate issued vide E.P.81/69 does not confer any absolute right on the plaintiff. Out of the properties described in 'A' schedule to the plaint, the properties described in X schedule in his written statement along with two other items are in his direct possession and enjoyment. The X schedule properties originally belonged to the second defendant on usufructuary mortgage and were obtained on lease by one P.Mohammad from the second defendant about 30 years back. The said Mohammad executed a registered assignment deed in favour of Ibrahim transferring his tenancy right in X schedule property. The leasehold right of Ibrahim was upheld in A.S.112/1968. On 29/03/1976 he along with his brother Koran and one T.A.Mohammad Kunhi jointly purchased the tenancy right of Ibrahim. All the improvements S. A. No.542 of 1993 -10- existing in X schedule belongs to this defendant. The suit is also barred under Order XXI Rule 103 of the C.P.C. The first defendant is not in possession of any portion of 'A' schedule properties and the suit has only to be dismissed. 6. Defendants 4 and 5 filed a joint written statement reiterating the contentions raised in the written statement filed by the third defendant. 7. The trial court raised necessary issues for trial on the above pleadings and thereafter, additional issues also were framed. After trial and considering the evidence adduced at trial which consisted of oral evidence of PW1 and DWs.1 and 2 and documentary evidence Exts.A1 to A6, B1 to B21 and Exts.C1 to C3, the trial court dismissed the suit entering findings against the plaintiffs to the effect that a separate suit S. A. No.542 of 1993 -11- to establish the alleged right under Ext.A5 Sale Sannath is not maintainable in view of Section 47 and Order XXI Rule 101 of the C.P.C and the remedy of the plaintiff was only to file an appeal against Ext.A6 order passed on I.A.914/1980 in O.S.44/1968; that as the first defendant was not having title on the date of court sale, the plaintiffs have not obtained title to the suit property as per Ext.A5; that the order on I.A.914/1980 is not liable to be set aside in the suit when the plaintiff has not filed appeal against Ext.A6 order; that the plaintiff has failed to implead all the heirs of deceased first defendant and the legal heirs of K.V.Kunhiraman who are all necessary parties to the suit and hence, the suit is bad for non-joinder of necessary parties; that the plaintiff has not been able however, to identify the suit property; and that the auction sale in E.P.82/1969 aforesaid S. A. No.542 of 1993 -12- is not valid and binding on defendants 4 and 5. 8. Assailing the judgment so passed by the trial court, plaintiffs filed A.S.39/1989 before the District Court, Kasaragod and the District Judge vide judgment dt.10/11/1992 dismissed the said appeal concurring with the findings of the court below. Hence, this Second Appeal by the plaintiffs in the suit against the concurrent judgments of the courts below. 9. It is vehemently contended before me by the learned counsel for the appellants that the concurrent findings of the courts below that the suit is not maintainable is not correct as I.A.914/1980 was being dismissed vide Ext.A6 order by the execution court holding that the said petition is filed beyond time and that petition seeking for condonation of delay (I.A.913/1980) was already dismissed. S. A. No.542 of 1993 -13- 10. The counsel for the respondent has placed before me for perusal the order of the execution court passed on I.A.913/1980 which shows that application for delivery filed by the auction purchaser stood posted to 15/04/1980 for delivery. On that day, however, delivery was not recorded in view of Amin's report regarding obstruction and the case was posted for steps to 04/07/1980 and the petition for removal of obstruction was filed within a month from 02/06/1980 on which date only they came to know of the obstruction on the advice of the counsel, that petition for removal of obstruction need be filed only within a month, but also with I.A.913/80 to condone the delay in filing I.A.914/80 as that I.A. ought to have been filed within 30 days of the obstruction offered to effect delivery. The delay condonation petition was objected to by the obstructors. The execution court has S. A. No.542 of 1993 -14- observed that the sale in favour of plaintiffs was confirmed on 16/07/1977 and after issuance of sale certificate I.A.1092/77 was filed for delivery of the properties covered by the sale certificate; that respondents 3 and 4 preferred separate objections resisting the delivery and therefore, the Amin had to return without executing delivery warrant; that it so happened on 15/04/1980 in the presence of the plaintiffs and it is incorrect to say that they came to know of the obstructions only on 02/06/1980 and that the petitioner has not made out a ground to condone the delay in filing I.A.914/1980 under Order XXI Rule 97 CPC and thus, dismissed the petition for condonation of delay. It was consequently, that I.A.914/1980 was also dismissed. 11. According to the counsel for the appellants, the orders passed on 17/09/1981 on I.A.913 and I.A.914 of 1980 in I.A.1092/1977 S. A. No.542 of 1993 -15- in E.P.81/69 in O.S.44/1968 is not an order passed after adjudication of the claims advanced and therefore, it is not an order as envisaged under Rule 98 of Order XXI C.P.C. and therefore, the provisions of Rule 103 does not apply to bar a fresh suit. He relies on the decision of this Court in Varadaraja Iyer v. Kunhippa & Co. (1987(1) KLT 570) in support of his contention. That was a case wherein this Court has held that a suit filed after commencement of Civil Procedure Code Amendment Act, 104 of 1976 under Rule 103 of Order XXI as it stood prior to amendment is not maintainable and that a separate suit is not maintainable for relief based on title though incidentally it was observed in the said judgment that it is only an order after adjudication in the manner provided for in the amended Rule 101 that will have the force of a decree for the purpose of appeal or otherwise as provided for in the S. A. No.542 of 1993 -16- amended Rule 103 and a separate suit for relief based on title would therefore, lie. No relief was moulded on the observations so made by the court in the said decision as the plaintiff in that suit was a transferee pendente lite and his claim was unsustainable in law. 12. On the other hand, the learned counsel for the respondent has cited the decision of this Court in Arjunan Achary v. Thankamma (1988(2) KLT 857) wherein the question as to whether an order dismissing an application for removing obstruction under Order XXI Rule 97 is an order under Order XXI Rule 98 and is appealable under Rule 103 was considered. It was observed by this Court in para 4 of the said judgment as follows:- “The word “adjudication” mentioned in Order XXI Rule 103 has to be understood in the context in which it is made for, the word “adjudication” occurs in Order XXI Rule 101 which does not provide for appeal and the word “adjudication” does not occur in Order S. A. No.542 of 1993 -17- XXI Rule 98 which provides for an appeal. The expression “adjudication” and “determination” thus have to be understood in their context, namely, that it is the determination contemplated under Order XXI Rule 98, which is referred to in Order XXI Rule 103 as the “adjudication” for the purposes of the appeal. The dismissal of an application under Order XXI Rule 97 in so far as the decree-holder is concerned, is an “adjudication” so far as his right to continue the execution petition. It is an “adjudication” so far as the obstructor is concerned for, his obstruction can no longer be removed by the decree-holder. In this sense also, the order dismissing the application for removing resistance of obstruction is well within the ambit of Order XXI Rule 103. The court below was, therefore, right in holding that the appeal was maintainable and in exercising its appellate power”. 13. The expression “adjudication” and “determination” in the context connotes only adjudication of the rights and rendering verdict. Adjudication of right need not necessarily be going into the merits of all the contentions raised. An adjudication on the question of limitation is also an adjudication which leads to the determination of an application filed under Order XXI Rule 97 and consequently, it is an order as envisaged under clause (b) of Sub-rule (1) of Rule 98 of S. A. No.542 of 1993 -18- the Code of Civil Procedure and the order so passed as mandated by Rule 101, shall have the force of decree as provided in Rule 103 and is liable to be assailed in an appeal as if the order were a decree. The above view has been upheld also by the Madras High Court in Nallasivam v. Dakshinamurthy and another (AIR 2004 Madras 387) wherein that court held that an order passed by a court under Rule 98 after adjudication on the ground that the application was not filed within the time prescribed by limitation is an appealable order as if it were a decree under Order XXI Rule 103. 14. Thus, inasmuch as the appellants have not preferred any appeal against Ext.A6 order a fresh suit as in the instant case filed by them is not maintainable as has been held concurrently by the courts below. It has therefore, to be held and I do hold answering the second and third substantial questions of S. A. No.542 of 1993 -19- law viz. substantial questions 'B' and 'C' formulated in the memorandum of appeal that right conferred under a court sale under Order XXI Rule 94 C.P.C does not confer on the auction purchaser title so as to enable him to recover possession of the property by instituting a regular suit not resorting to and pursuing the remedies provided by the provisions contained in Order XXI of the C.P.C. Points formulated as 'A', 'D', 'E' and 'F' are no substantial questions of law. Thus, there is absolutely no merit in the Second Appeal and the Second Appeal deserves only to be dismissed, but in the circumstances without costs. 15. In the result, I dismiss this Second Appeal. No order as to costs. K.P.BALACHANDRAN, JUDGE kns/-