Kerala High Court
Mohamedkutty vs Vijayalakshmi on 23 February, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE G. GIRISH
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
F.A.O.NO.115 OF 2023
ARISING OUT OF THE ORDER DATED 15.07.2023 IN I.A.No.103 OF
2019 AND I.A.No.102 OF 2019 IN O.S.NO.375 OF 2012 OF THE
SUB COURT, OTTAPPALAM
APPELLANTS:
1 MOHAMEDKUTTY, AGED 60 YEARS
S/O.YOOSAF, THACHARATHODIYIL HOUSE, THRITHALA
AMSOM DESOM & POST, PATTAMBI TALUK, PALAKKAD
DISTRICT, PIN - 679534
2 RAMLATH, AGED 50 YEARS
W/O.MOHAMEDKUTTY, THACHARATHODIYIL HOUSE,
THRITHALA AMSOM DESOM & POST, PATTAMBI TALUK,
PALAKKAD DISTRICT, PIN - 679534
3 UNNIKRISHNAN
AGED 65 YEARS
S/O.K.T.ACHUTHAN NAIR, THOTTAPALA HOUSE,
NJANGATTIRI AMSOM, THRITHALA DESOM, POST
NELLIKATTIRI, KOOTTANAD, PATTAMBI TALUK, PALAKKAD
DISTRICT, PIN - 679533
4 M.BALAN
AGED 72 YEARS
S/O.MATHIPARAMBIL PONNAN, 'KOUSTHUBHAM',
NJANGATTIRI AMSOM, THRITHALA DESOM, POST
NJANGATTIRI, PATTAMBI TALUK, PALAKKAD DISTRICT,
PIN - 679303
5 VINOD NAIR
AGED 42 YEARS
S/O.BALAKRISHNA NAIR, PANAMBATTA CHOZHIYATH
HOUSE, MUTHUTHALA AMSOM, KOZHIKOTTERI DESOM, POST
KOZHIKOTTERI, VIA.PATTAMBI, PATTAMBI TALUK,
PALAKKAD DISTRICT, PIN - 679303
2
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
BY ADVS.
P.B.KRISHNAN
LINDONS C.DAVIS
SABU GEORGE
E.U.DHANYA
MANU VYASAN PETER
RESPONDENTS:
1 VIJAYALAKSHMI
W/O.LATE MOHANAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
2 LALU
S/O.(LATE) MOHANAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
3 LEENA
KUNNINMIL CHAKKUM MADATHIL KIZHAKKETHIL,
THRITHALA AMSOM, NHANGATTIRI DESOM, OTTAPPALAM
TALUK, PALAKKAD DISTRICT, PIN - 679533
4 SATHYA
D/O.LATE NARAYANAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
*5 KRISHNAKUMARI (DELETED)
D/O.LATE GOPALAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
*(R5 STANDS DELETED AS PER ORDER DATED 23.02.2024
IN I.A.NO.2 OF 2024)
6 GIRIJA
D/O.LATE GOPALAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
7 PADMAVATHY
W/O.LATE PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
3
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
8 RAMAKRISHNAN
S/O.PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
9 DR.GANESH
S/O.PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
10 AJITHKUMAR
S/O.PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
11 RADHAMANI
W/O.LATE SAHADEVAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
12 KRISHNAPRASAD
S/O.LATE SAHADEVAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
13 DHANYA
D/O.LATE SAHADEVAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
BY ADVS.
SREEHARI R
HAMZA A.V.(K/1588/2022)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 23.02.2024, ALONG WITH OP(C).2137/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
4
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE G. GIRISH
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
OP(C) NO. 2137 OF 2023
ARISING OUT OF THE ORDER DATED 15.07.2023 IN I.A.No.104 OF
2019 IN O.S.NO.375 OF 2012 OF THE SUB COURT, OTTAPPALAM
PETITIONERS:
1 MOHAMEDKUTTY
AGED 60 YEARS
S/O.YOOSAF, THACHARATHODIYIL HOUSE, THRITHALA
AMSOM DESOM & POST, PATTAMBI TALUK, PALAKKAD
DISTRICT, PIN - 679534
2 RAMLATH
AGED 50 YEARS
W/O.MOHAMEDKUTTY, THACHARATHODIYIL HOUSE,
THRITHALA AMSOM DESOM & POST, PATTAMBI TALUK,
PALAKKAD DISTRICT, PIN - 679534
3 UNNIKRISHNAN
AGED 65 YEARS
S/O.K.T.ACHUTHAN NAIR, THOTTAPALA HOUSE,
NJANGATTIRI AMSOM, THRITHALA DESOM, POST
NELLIKATTIRI, KOOTTANAD, PATTAMBI TALUK, PALAKKAD
DISTRICT, PIN - 679533
4 M.BALAN
AGED 72 YEARS
S/O.MATHIPARAMBIL PONNAN, 'KOUSTHUBHAM',
NJANGATTIRI AMSOM, THRITHALA DESOM, POST
NJANGATTIRI, PATTAMBI TALUK, PALAKKAD DISTRICT,
PIN - 679303
5 VINOD NAIR
AGED 42 YEARS
5
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
S/O.BALAKRISHNA NAIR, PANAMBATTA CHOZHIYATH
HOUSE, MUTHUTHALA AMSOM, KOZHIKOTTERI DESOM, POST
KOZHIKOTTERI, VIA.PATTAMBI, PATTAMBI TALUK,
PALAKKAD DISTRICT, PIN - 679303
BY ADVS.
P.B.KRISHNAN
SABU GEORGE
LINDONS C.DAVIS
E.U.DHANYA
MANU VYASAN PETER
RESPONDENTS:
1 VIJAYALAKSHMI
W/O.LATE MOHANAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
2 LALU
S/O.(LATE) MOHANAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
3 LEENA
AGED 35 YEARS
KUNNINMIL CHAKKUM MADATHIL KIZHAKKETHIL,
THRITHALA AMSOM, NHANGATTIRI DESOM, OTTAPPALAM
TALUK, PALAKKAD DISTRICT, PIN - 679533
4 SATHYA
AGED 56 YEARS
D/O.LATE NARAYANAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
5 KRISHNAKUMARI
AGED 61 YEARS
D/O.LATE GOPALAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD, PIN - 679533
6 GIRIJA
AGED 58 YEARS
6
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
D/O.LATE GOPALAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
7 PADMAVATHY
AGED 72 YEARS
W/O.LATE PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
8 RAMAKRISHNAN
AGED 44 YEARS
S/O.PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
9 DR.GANESH
AGED 40 YEARS
S/O.PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
10 AJITHKUMAR
AGED 38 YEARS
S/O.PRABHAKARAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
11 RADHAMANI
AGED 47 YEARS
W/O.LATE SAHADEVAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
12 KRISHNAPRASAD
AGED 27 YEARS
S/O.LATE SAHADEVAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
13 DHANYA
AGED 23 YEARS
D/O.LATE SAHADEVAN, KUNNINMIL CHAKKUM MADATHIL
KIZHAKKETHIL, THRITHALA AMSOM, NHANGATTIRI DESOM,
7
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679533
*14 SHARMILA, AGED 43 YEARS, D/O LATE KRISHNAKUMARI,
KUNNUMMAL CHAKKUM MADATHIL KIZHAKETHIL, THRITHALA
AMSOM, NHANGATTIRI DESOM, PATTAMBI TALUK,
PALAKKAD DISTRICT -679534
*15 DILEEPKUMAR, AGED 30 YEARS, S/O LATE
KRISHNAKUMARI,
KUNNUMMAL CHAKKUM MADATHIL KIZHAKETHIL, THRITHALA
AMSOM, NHANGATTIRI DESOM, PATTAMBI TALUK,
PALAKKAD DISTRICT - 679534
*16 BABY REKHA, AGED 29 YEARS, S/O LATE KRISHNAKUMARI
KUNNUMMAL CHAKKUM MADATHIL KIZHAKETHIL, THRITHALA
AMSOM, NHANGATTIRI DESOM, PATTAMBI TALUK,
PALAKKAD DISTRICT -679534
*BEING LEGAL REPRESENTATIVES OF DECEASED R5 ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 16 VIDE
ORDER DATED 18.12.2023 IN IA 1 of 2023*
BY ADVS.
SREEHARI R
HAMZA A.V.(K/1588/2022)
VIGNESH S.(K/3697/2022)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2024, ALONG WITH FAO.115/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
8
F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023
JUDGMENT
Anil K. Narendran, J Since this F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023 arose out of a common order dated 15.07.2023 of the Sub Court, Ottappalam in the interlocutory applications filed in O.S.No.375 of 2012, both these cases are heard together and are being disposed of by this common judgment.
2. The appellants in F.A.O.No.115 of 2023, who are the petitioners in O.P.(C)No.2137 of 2023 are third parties to O.S.No.375 of 2012, which was one originally filed by Mohanan, predecessor-in-interest of respondents 1 to 4 herein, seeking partition of the plaint schedule property. In that suit, the Sub Court passed a preliminary decree, which is one dated 25.01.2018. The appellants/petitioners filed I.A.No.102 of 2019 in O.S.No.375 of 2012, invoking the provisions under Section 5 of the Limitation Act to condone the delay of 325 days in filing the petition, i.e., I.A.No.103 of 2009 filed invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the preliminary decree passed in that suit on 25.01.2018 and to allow them to contest that suit; and I.A.No.104 of 2019, invoking the provisions under Order I Rule 10 of the Code to implead them as 9 F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023 supplementary defendants 13 to 17 in the suit. Those interlocutory applications ended in dismissal by the common order dated 15.07.2023 of the Sub Court, Ottapalam. The dismissal of I.A.Nos.102 and 103 of 2019 in O.S.No.375 of 2012 is under challenge in F.A.O.No.115 of 2023, filed invoking the provisions under Order XLIII Rule 1(d) of the Code, and the dismissal of I.A.No.104 of 2019 in O.S.No.375 of 2012 is under challenge in O.P.(C)No.2137 of 2023 filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
3. On 12.10.2023, when O.P.(C)No.2137 of 2023 came up for consideration before the learned Single Judge, the petitioners were directed to take out notice before admission to respondents by speed post, returnable within 7 days.
4. On 13.10.2023, when F.A.O.No.115 of 2023 came up for admission, respondents 1 to 3 entered appearance through counsel. This Court issued notice to respondents 4 to 13 by speed post.
5. By the order dated 22.02.2024, Registry was directed to list O.P.(C)No.2137 of 2023 before this Court along with F.A.O.No.115 of 2023, since the challenge in both matters is against the common order dated 15.07.2023 of the Sub Court, 10 F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023 Ottapalam in I.A.Nos.102, 103 and 104 of 2019 in O.S.No.375 of 2012.
6. Heard the learned counsel for the appellants/ petitioners and the learned counsel for respondents 1 to 3, the legal representatives of the deceased original plaintiff in O.S.No.375 of 2012, who were later impleaded as supplemental plaintiffs in that suit.
7. After arguing for some time, the learned counsel for the appellants in F.A.O.No.115 of 2023/petitioner in O.P.(C)No.2137 of 2023 would submit that since a preliminary decree has already been passed in O.S.No.375 of 2012, the proper course open to the appellants/petitioners, who are third parties, is to raise their claim in the final decree proceedings. Since a final decree has also been passed in O.S.No.375 of 2012 on 10.08.2023, the appellants/petitioners may be granted permission to withdraw I.A.Nos.102, 103 and 104 of 2019 in O.S.No.375 of 2012, without prejudice to their right to raise their claim in the execution proceedings.
8. The learned counsel for respondents 1 to 3/ supplemental plaintiffs in O.S.No.375 of 2012 would point out the pendency of O.S.Nos.156, 157, 158 and 163 of 2018 filed by the 11 F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023 appellants/petitioners, before the Munsiff Court, Pattambi, seeking various reliefs in respect of the property in question.
9. Having considered the submissions made at the Bar, we deem it appropriate to dispose of this F.A.O. and O.P.(C) by permitting the appellants/petitioners to withdraw I.A.Nos.102, 103 and 104 of 2019 in O.S.No.375 of 2012, without prejudice to their right to raise their claim in the execution proceedings.
Accordingly, the impugned order dated 15.07.2023 of the Sub Court, Ottapalam in I.A.Nos.102, 103 and 104 of 2019 is set aside and those interlocutory applications are dismissed as withdrawn.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
G. GIRISH, JUDGE MIN 12 F.A.O.No.115 of 2023 and O.P.(C)No.2137 of 2023 APPENDIX OF OP(C) 2137/2023 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE PLAINT OF OS NO.375/2012 DATED 14.11.2012 ON THE FILE OF THE SUB COURT, OTTAPPALAM EXHIBIT P2 COPY OF THE PURCHASE CERTIFICATE DATED 16.07.1971 IN APPLICATION NO.133/1970 EXHIBIT P3 COPY OF THE JUDGMENT IN OS NO.375/2012 DATED 25.01.2018 ON THE FILE OF THE SUB COURT, OTTAPPALAM EXHIBIT P4 COPY OF THE IA NO.104/2019 IN OS NO.375/2012 BEFORE THE HON'BLE SUB COURT, OTTAPPALAM DATED 12.01.2019 EXHIBIT P5 COPY OF THE COUNTER AFFIDAVIT DATED 18.11.2019 FILED BY THE RESPONDENTS EXHIBIT P6 COPY OF THE ORDER DATED 15.07.2023 IN IA NO.104/2019 IN OS NO.375/2012 ON THE FILE OF THE SUB COURT, OTTAPPALAM