IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 CRP.No.1568 of 2003 (A) ------------------------------ OS.128/1997 of ADDL.SUB COURT, KOTTAYAM .................... REVN. PETITIONERS: PLAINTIFFS 3 TO 49 ------------------------------------------------- 1. LUIS THOMAS, KUTTAMPEROOR CHACKALACKAL HOUSE, VAZHAPPALLY EAST, CHANGANACHERRY TALUK, KOTTAYAM. 2. LILLY JOSEPH OF DO.. DO.. DO.. 3. LUCY THOMAS OF DO... DO... DO... 4. LEELA THOMAS OF DO.. DO.. DO.. 5. LAILAMMA JACOB OF DO.. DO.. DO.. 6. LIZA ANTONY OF DO.. DO.. DO., 7. LALY JOSEPH OF DO.. DO.. DO.. 8. LITTY JOSE OF DO.. DO.. DO.. 9. LANCY ALEXANDER OF DO. DO.. DO.. 10. LENOY JACOB OF DO.. DO.. DO.. 11. ALEYKUTTY JOSEPH, MELAZHAKATH HOUSE, DO.. DO.. 12. THOMAS JOSEPH OF DO.. DO.. DO.. 13. JOHNY JOSEPH OF DO.. DO.. DO.. 14. GEORGE JOSEPH, OF DO.. DO.. DO.. 15. MATHEW JOSEPH, OF DO.. DO.. DO.. 16. PIUS JOSEPH OF DO.. DO.. DO.. CRP.No.1568 of 2003 (A) -2- 17. THELMA JOSEPH, OF DO.. DO.. DO.. 18. MEMMA JOSEPH OF DO.. DO.. DO.. 19. ELSY JOSEPH OF DO. DO.. DO.. 20. ANCY JOSEPH OF DO.. DO.. DO.. 21. PREETHY JOSEPH OF DO.. DO.. DO.. 22. JOSEPH JOSEPH OF DO.. DO.. DO.. 23. K.M.ALEXANDER, KOOTTIYANIL HOUSE, 38/87 PEYOLI LANE, COCHIN 18. 24. VIMALA MATHEW, OF DO.. DO.. DO.. 25. ROSAMMA MATHEW, OF DO.. DO.. DO.. 26. K.M.PAULSON OF DO.. DO.. DO.. 27. LIZZY MATHEW OF DO. DO. DO. 28. MANOJ MATHEW OF DO.. DO.. DO.. 29. ROSAMMA JOSEPH, KOIPPALLIL HOUSE, KURISUMMOODU P.O., CHANGANACHERRY, KOTTAYAM. * 30. SUNNY JOSEPH OF DO.. DO.. DO.. [DIED; LRs impleaded] 31. LIZZY JOSEPH, OF DO. DO. DO. 32. LUCY JOSEPH OF DO.. DO. DO. 33. ALICE JOSEPH OF DO. DO. DO. 34. VALSA JOSEPH OF DO.. DO.. DO.. 35. DAUGHTY JOSEPH OF DO.. DO.. DO.. 36. MARTIN JOSEPH OF DO.. DO.. DO.. 37. ANITA JOSEPH OF DO. DO. DO. 38. REGINE JOSEPH OF DO.. DO.. DO.. CRP.No.1568 of 2003 (A) -3- 39. BEENA LOVELY KUTTANPEROOR CHACKALAYIL HOUSE, VAZHAPPALLY EAST, CHANGANACHERRY, KOTTAYAM. 40. DEEPTHY SIBY OF DO. DO. DO. 41. DHANU TOMY OF DO.. DO.. DO.. 42. DAYA SOJI OF DO.. DO.. DO.. 43. DIBU MICHEL OF DO.. DO.. DO.. 44. DEVU LOULY OF DO.. DO.. DO.. 45. DEEPAK LOULY OF DO.. DO.. DO.. 46. TANU RAJU W/O.RAJU, CHUNGATH HOUSE, CRASH ROAD, VAZHAKKALA, KOCHI,. 47. TOM LAL OF DO.. DO.. DO.. (PLAINTIFF 1 AND 2 ARE NO MORE. SO THEY ARE NOT IMPLEADED) ADDL. PETITIONERS 48 TO 50 48. VALSA SUNNY, W/O LATE SUNNY JOSEPH, KOIPALLY HOUSE, KURISUMOOD, CHANGANACHERRY. 49. JOSEPH KOIPALLY, S/O DO. DO. 50. PRIYA JOSEPH, D/O DO. DO. [POWER OF ATTORNEY HOLDER JOSPH FRNCIS, KOIPALLY HOUSE, CHANGANACHERRY REPRESENTS THE PETITIONERS] * ADDL. PETITIONERS 48 TO 50 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 30TH PETITIONER AND ARE PERMITTED TO CONTINUE THE REVISION PETITION REPRESENTED BY THE POWER OF ATTORNEY JOSEPH FRANCIS VIDE ORDER DT.28/11/05 IN I.A.3093/05. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS: DEFENDANTS ----------------------------------- 1. K.C.THOMAS, S/O.CHANDY, KOTTIYANIL MALIAKEL HOUSE, NO.G/74 PANAMPALLY NAGAR, ERNAKULAM, COCHIN - 36. CRP.No.1568 of 2003 (A) -4- 2. TEENA LAL THOMAS, KUTTANPEROOR, NOW RESIDING AT 70 KENWOOD GARDENS, GANS HILL ILLFORD, ESSEX-1, 26 YQ-UK. ADV. SRI.TOM K.THOMAS FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. R. P. No.1568 of 2003 ------------------------------------------------ Dated this the 3rd day of October, 2008 ORDER This is revision filed by the plaintiffs in O.S.128/97 assailing the order passed by the trial court holding that the petitioners/ plaintiffs can proceed with the suit for recovery of amounts from the defendants only on production of succession certificate by them. 2. The facts of the case require to be stated for appreciating the question involved. Varkey Thomas the predecessor of plaintiffs 1 to 12, Joseph Thomas the predecessor of plaintiffs 13 to 24, K.C. Mathew, the predecessor of plaintiffs 25 to 30 and Joseph Joseph, the predecessor of plaintiffs 31 to 40 along with the defendant K.C.Thomas was running a firm under the firm name “Finance and Investment Corporation” as also a private C. R. P. No.1568 of 2003 -2- limited company “FIC Agencies (P) Ltd.”. From the firm as also the company, Kulathumkal Motors Corporation had availed of loans. For recovery of the loan amount due to the company FIC Agencies (P) Ltd., the defendant/K.C.Thomas as the Managing Director of the company instituted O.S.20/75 and for recovery of amounts due to the firm “Finance and Investment Corporation”, the defendant/ K.C.Thomas as the Managing Partner instituted O.S.288/74 against Kulathumkal Motors Corporation. Both the suits were decreed. It is submitted that in O.S.20/75, the decree amount was deposited by Kulathumkal Motors Corporation and that was withdrawn by the defendant in his capacity as Managing Director of the company and in relation to the debt due under the decree in O.S.288/74 properties belonging to the judgment debtor Kulathumkal Motors Corporation was brought to sale and was C. R. P. No.1568 of 2003 -3- purchased by the decree holder. It is the case of the plaintiffs that an agreement has been entered into on second October 1989 between Joseph Joseph, K.C. Mathew and the defendant K.C.Thomas who were partners in the firm Finance and Investment Corporation as also one each of the L.Rs of the other two deceased partners Joseph Thomas and Varkey Thomas whereunder it was agreed that the amounts that may be realised in execution of the decrees in O.S.288/74 and O.S.20/75 will be divided into five equal shares and that each one of them will take one such share. It is not known as to how one each of the L.Rs of deceased Joseph Thomas and Varkey Thomas who were partners in the firm could enter into such an agreement to the exclusion of the other heirs of the deceased partners. However, K.C. Mathew and Joseph Joseph who were parties to the said agreement have also expired leaving behind as C. R. P. No.1568 of 2003 -4- their L.Rs respectively plaintiffs 25 to 30 and 31 to 40. 3. It is submitted by counsel for the petitioners that the present suit is filed by all the heirs of the deceased partners Varkey Thomas, Joseph Thomas, K.C. Mathew and Joseph Joseph to recover the amounts due from the respondent/defendant K.C. Thomas as per the agreement and therefore, no succession certificate is necessary being a suit for enforcement of the agreement dt.02/10/1989. Even if the suit is one for enforcement of the said agreement marked as Ext.A1 in the suit two of the executants namely K.C. Mathew and Joseph Joseph have passed away and their L.Rs are respectively plaintiffs 25 to 30 and 31 to 40. The amounts due and sought to be recovered from the respondent/defendant is the debt recovered by him in execution of the decree in O.S.20/75. No decree has been passed in the C. R. P. No.1568 of 2003 -5- present suit. Consequently, therefore, even assuming that the suit is one for enforcement of Ext.A1 agreement the suit being one for recovery of specified amounts recovered by the defendant under the decree in O.S.20/75, succession certificate requires to be produced as even the two executants of the agreement namely K.C. Mathew and Joseph Joseph have passed away. It is not a case where the amounts due is unliquidated and is not quantified and has not matured into a debt. The finding of the court below that the suit cannot be decreed without production of succession certificate in the circumstances has only to be upheld. This revision is devoid of merit and is dismissed. K.P.BALACHANDRAN, JUDGE kns/-