Kerala High Court
Ponnamma Aged 64 Years vs Kochumon on 3 December, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934
OP(C).No. 801 of 2013 (O)
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AGAINST THE ORDER/JUDGMENT IN IA.176/2010 of DISTRICT
COURT,PATHANAMTHITTA DATED 03-12-2012
PETITIONERS:
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1. PONNAMMA AGED 64 YEARS
W/o.LATE PAPPACHAN
RESIDING AT MOOLAYIL VADAKKEURAYIL
THONNALLUR MURI
PANDALAM VILLAGE, PANDALAM P O
PATHANAMTHITTA DISTRICT, 689 501
2. SHAJI
S/O.LATE PAPPACHAN
AGED 33 YEARS, RESIDING AT MOOLAYIL VADAKKEURAYIL
THONNALLUR MURI
PANDALAM VILLAGE, PANDALAM P O
PATHANAMTHITTA DISTRICT, 689 501
3. SHIBU, S/O.LATE PAPPACHAN
AGED 29 YEARS, LABOURER
RESIDING AT MOOLAYIL VADAKKEURAYIL
THONNALLUR MURI
PANDALAM VILLAGE, PANDALAM P O
PATHANAMTHITTA DISTRICT, 689 501
BY ADVS.SRI.SHIJU VARGHEESE
SRI.PRAMOJ ABRAHAM
SRI.A.C. EAPEN
RESPONDENTS:
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1. KOCHUMON
S/o.LATE MATHUNNY, AGED 60 YEARS
RESIDING AT MOOLAYIL VADAKKEURAYIL
THONNALLUR MURI
PANDALAM VILLAGE, PANDALAM P O
PATHANAMTHITTA DISTRICT, 689 501
2. SHEEBA, D/o.LATE PAPPACHAN aged 27 YEARS
RESIDING AT MOOLAYIL VADAKKEURAYIL
THONNALLUR MURI
PANDALAM VILLAGE, PANDALAM P O
PATHANAMTHITTA DISTRICT, 689 501
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 801 of 2013 (O)
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1 : PLAINT IN O.S.NO.92/2000 FILED BEFORE the
MUNSIFF's COURT, ADOOR DTD 25.02.2000
EXT.P2 : JUDGMENT IN O.S.NO.92/2000 DTD 12.08.2002
EXT.P3 : E.P.NO.185/2006 IN O.S.NO.92/2000 DTD 11.12.2006
EXT.P4 : APPEAL MEMORANDUM AGAINST the JUDGMENT AND
DECREE IN O.S.NO.92/2000 OF THE MUNSIff's COURT,
ADOOR DTD 02.03.2010
EXT.P5 : I.A.NO.176/2010 DTD 02.03.2010
EXT.P6 : OBJECTIONS TO the I.A.NO.176/2010 FILED BY the
1ST respondent DTD 22.07.2010
EXT.P7 : ORDER IN I.A.NO.176/2010 DTD 03.12.2012
RESPONDENTS' EXHIBITS: NIL
True Copy
P.A to Judge
THOMAS P.JOSEPH, J.
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O.P(C).No.801 of 2013
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Dated this the 26th day of February, 2013
J U D G M E N T
First respondent obtained a decree for mandatory injunction against petitioner and others in O.S.No.92 of 2000 of the Munsiff's Court,Adoor. The decree permitted fixation of boundary, if necessary by dismantling the existing boundary. Petitioner preferred appeal challenging that judgment and decree in the District Court, Pathanamthitta with I.A.No.176 of 2010 to condone the delay. Learned District Judge did not number the appeal and after hearing the parties, dismissed I.A.No.176 of 2010 . That order is under challenge in this original petition.
2. I have heard learned counsel for petitioners.
3. In the light of the decision of this Court in Leena Vs. State (2010(2) KLT 836) remedy available to the petitioner is to challenge judgment and decree in the appeal by way of second appeal, if permitted. Petitioner cannot challenge the order on I.A.No.176 of 2010 by way of this original petition.
4. Learned counsel submits that the appeal was not even numbered and to the knowledge of the petitioners, there is no judgment or decree following dismissal of I.A.No.176 of 2010. O.P(C).No.801 of 2013 2
5. In Leena Vs. State (supra) it is specifically stated that if there is no practice of preparing a decree consequent to the dismissal of the appeal as time barred, that is wrong and that a decree has to be prepared. In this case learned District Judge has not numbered the appeal which goes against circular No.22/68 (S.A- 1837/67/D1 dated 12.09.1968) issued by this Court.
6. Learned District Judge ought to have numbered the appeal and consequent to the dismissal of I.A.No.176 of 2010, pronounced judgment on the appeal followed by a decree to be drawn up. Since the appeal is not numbered, learned District Judge has to comply with the circular above stated.
7. Learned counsel submitted that in the meantime first respondent is executing the decree in O.S.No.92 of 2000 of Munsiff's Court, Adoor.
In the light of the above, original petition is disposed of as under:
(i) In case judgment is not pronounced and a decree not drawn up in the unnumbered appeal which was dismissed consequent to the dismissal of I.A.No.176 of 2010, learned District Judge, Pathanamthitta is directed to number the appeal with notice to the first respondent/counsel O.P(C).No.801 of 2013 3 as well as required in circular No.22/68 (S.A-
1837/67/D1) dated 12.09.1968 of the High Court of Kerala. Following numbering of the appeal and consequent to the dismissal of I.A.No.176 of 2010, learned District Judge shall pronounce judgment in the appeal and that has to be followed by drawing up of a decree.
(ii) The above exercise shall be done within a period of two weeks from this day.
(iii) If petitioner applies for a copy of judgment and decree, learned District Judge shall as per rules issue copy of the judgment and decree as early as possible giving it priority.
(iv) It is directed that execution of the decree in O.S.No.92 of 2000 of Munsiff's Court, Adoor to the extent it involves dismantling building of petitioners will stand in abeyance for a period of two (2) months from this day.
(v) Petitioner shall produce a copy of this judgment before learned District Judge, Pathanamthitta on 27.02.2013.
THOMAS P.JOSEPH, JUDGE Sbna