Kerala High Court
Reynold Mendez vs Tata Tea Ltd on 9 March, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942
OP(C).No.1635 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 68/2006 DATED 22-08-2019
OF MUNSIFF MAGISTRATE COURT, DEVICOLAM
PETITIONER/RESPONDENT/JUDGMENT DEBTOR:
REYNOLD MENDEZ, AGED 65 YEARS
S/O.ROBERT MENDEZ AND GRANDSON OF LATE JACOB
MENDEZ, RESIDING AT HOUSE NO.XX/251 (OLD
NO.M.P.XI/674) SITUATE IN SY NO. 148 OF MUNNAR
(PREVIOUSLY K.D.H.) VILLAGE, PARIAVURAI ESTATE,
TATA TEA LTD. MUNNAR, (PREVIOUSLY K.D.H)
VILLAGE, DEVIKULAM TALUK, DIST.IDUKKI
BY ADVS.
SRI.K.REGHU KOTTAPPURAM
SRI.R.MAHESH (KOTTAPPURAM)
SRI.MURUKESH REGHU
RESPONDENTS/PETITIONERS/PLAINTIFFS/DECREE HOLDERS:
1 TATA TEA LTD.
BISHOP LEFROY ROAD, CALCUTTA, HAVING REGIONAL
OFFICE AT MUNNAR (PREVIOUSLY K.D.H.) VILLAGE,
REP.BY IT'S POWER OF ATTORNEY HODER M/S. KANNAN
DEVAN HILLS PLANTATION COMPANY PVT LTD. MUNNAR,
(PREVIOUSLY K.D.H) VILLAGE DIT., IDUKKI. 685
612
2 K.D.H.P. CO (P) LTD.
REGISTERED OFFICE K.D.H.P. HOUSE, MUNNAR,
(PREVIOUSLY K.D.H) VILLAGE DIT.,
IDUKKI. 685 612
O.P. (Civil) No.1635 of 2020 2
R1 BY ADV. SRI.V.ABRAHAM MARKOS
R1 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
R1 BY ADV. SRI.ISAAC THOMAS
R1 BY ADV. SHRI.ALEXANDER JOSEPH MARKOS
R1 BY ADV. SHRI.SHARAD JOSEPH KODANTHARA
R1 BY ADV. SMT.ZAINAB ZEBAIBRAHIM P.M.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-
2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:
O.P. (Civil) No.1635 of 2020 3
P.B.SURESH KUMAR, J.
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Original Petition (Civil) No.1635 of 2020
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Dated this the 9th day of February, 2021
JUDGMENT
Respondents obtained a decree for recovery of possession of an item of immovable property from the petitioner in O.S. No.68 of 2006 on the files of the Munsiff's Court, Devikulam. Though the petitioner challenged the decree in appeal, the appellate court affirmed the same. The petitioner challenged the decisions of the trial court and the appellate court before this court in RSA No.819 of 2012 and the said appeal was dismissed. Though the decree was one for recovery possession of the immovable property described in the plaint, the description of the plaint schedule property was omitted to be included in the decree drafted by the trial court as required by Rule 9 of Order XX of the Code of Civil Procedure(the Code) Noticing the said omission, respondents preferred an application as I.A.No.859 of 2019 before the trial court invoking Section 152 of the Code for incorporation of the description of the plaint schedule property in the O.P. (Civil) No.1635 of 2020 4 decree. The said application was allowed by the trial court as per Ext.P6 order. Ext.P6 is under challenge in this original petition on the ground that the decree of the trial court is merged in the decree passed by this Court in the second appeal, affirming the decisions of the trial court and the appellate court and as such, the application filed before the trial court for incorporation of the description of the property in the decree is not maintainable.
2. Heard the learned counsel for the petitioner as also the learned counsel for the respondents.
3. In the light of the decision of the Full Bench of this Court in Kannan v. Narayani, 1980 KLT 9, since the decree passed by the trial court as also the decree passed by the appellate court affirming the decree of the trial court, have been affirmed by this Court in R.S.A.No.819 of 2012, the decrees of the court below are merged in the decree passed by this court and therefore, an application under Section 152 of the Code for amendment/correction of the decree could be filed only before this Court. Needless to say, I.A.No.859 of 2019 filed by the respondents before the trial court in the suit is not maintainable.
O.P. (Civil) No.1635 of 2020 5
In the result, the original petition is allowed and the impugned order is set aside.
Sd/-
P.B.SURESH KUMAR, JUDGE ds 25.02.2021 O.P. (Civil) No.1635 of 2020 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A PHOTOCOPY OF JUDGMENT DATED 31.3.2010 IN O.S.68/2006 EXHIBIT P2 A PHOTOCOPY OF DECREE DATED 31.3.2010 IN O.S.68/2006 EXHIBIT P3 A PHOTOCOPY OF JUDGMENT DATED 27.9.2018 IN R.S.A.819/2012 EXHIBIT P4 A PHOTOCOPY OF APPLICATION VIDE I.A.NO.859/2019 DATED 25.7.2019 IN O.S.68/2006 FOR AMENDMENT OF DECREE EXHIBIT P5 A PHOTOCOPY OF STATEMENT OF OBJECTION DATED 7.8.2019 EXHIBIT P6 A PHOTOCOPY OF ORDER DATED 22.8.2019 IN I.A.NO.859/2019 IN O.S.NO.68/2006 EXHIBIT P7 A PHOTOCOPY OF AMENDED DECREE IN O.S.68/2206 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE PLAINT O.S NO. 68/2006 DATED 20.03.2006 FILED BY THE 1ST RESPONDENT BEFORE THE HON'BLE MUNSIFF COURT, DEVICOLAM.
EXHIBIT R1(b) TRUE COPY OF THE INTERLOCUTORY APPLICATION I.A.NO.1/2020 FILED BY THE 1ST AND 2ND RESPONDENTS BEFORE THIS HON'BLE COURT IN RSA NO.819/2012 WIHTOUT ANNEXURES.