IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA,
1942
RSA.No.758 OF 2015
AGAINST THE ORDER/JUDGMENT IN AS 61/2008 DATED 06-09-2011
OF PRINCIPAL SUB COURT, TRIVANDRUM
AGAINST THE ORDER/JUDGMENT IN OS 421/1984 DATED 20-09-
2006 OF PRINCIPAL MUNSIFF COURT, TRIVANDRUM
APPELLANT/S:
1 SOBHA,
AGED 57 YEARS, DAUGHTER OF HRISHIKESAN ASARI,
RESIDNG AT NEELAMBARI,HOUSE
NO.162,MUDAVANMUGAL,THIRUVANANTHAPURAM.
2 SASIKALA,
AGED 55 YEARS, DAUGHTER OF HRISHIKESAN ASARI,
RESIDNG AT CKRRA-93, PETTAH-KAVARADI ROAD,
PETAH P.O, THIRUVANANTHAPURAM.
BY ADVS.
SRI.G.RAJEEV
SMT.LEKSHMI RAMAKRISHNAN
SHRI.MUHAMMAD JASHEEN J.
SHRI.REJITH RAJENDRAN
RESPONDENT/S:
1 JAGATHY SREEKUMAR,
AGED 68 YEARS, SON OF KRISHNAN ASARI,
KRISHNA VILASOM, PULIYARAKONATHU, THYCAUD
VILLAGE,THYCAUD P.O, THIRUVANANTHAPURAM,
PIN 695 001.
R.S.A.No.758/2015 2
2 KRISHNAKUMAR,
AGED 66 YEARS, SON OF KRISHNAN ASARI,KRISHNA
VILASOM,PULIYARAKONATHU,THYCAUD VILLAGE,THYCAUD
P.O, THIRUVANANTHAPURAM,PIN 695 001.
3 JAMEELA.P.K
AGED 64 YEARS, DAUGHTER OF KRISHNAN ASARI,
J.E.M.S, SCT NAGAR ,NO.103, CHALAKUZHY,
PATTOM P.O, THIRUVANANTHAPURAM, PIN 695 001.
4 H.RAVINDRANATH,
AGED 60 YEARS, SON OF HRISHIKESAN ASARI,
TC 7/1851, THUNDAKATTALKAL PURAYIDOM,
POOJAPURA P.O, THIRUVANANTHAPURAM,
PIN 695 001.
5 BABU,
AGED 62 YEARS, SON OF HRISHIKESAN ASARI,
UTHRADOM, KATTACKAL, CHADIYARA,POOJAPURA P.O,
THIRUVANANTHAPURAM, PIN 695 001.
R1 BY ADV. SRI.R.S.KALKURA (CAVEATOR)
R1 BY ADV. SRI.R.S.KALKURA CAVEATOR
R1 & R3 BY ADV. SMT.P.ANJANA
R1 BY ADV. SRI.T.S.ABDUL KHADER
R1 BY ADV. SMT.R.BINDU
R1 BY ADV. SRI.HARISH GOPINATH
R1 BY ADV. SRI.R.S.KALKURA
R1 BY ADV. SRI.M.S.KALESH
R1 BY ADV. SRI.P.M.UNNI NAMBOODIRI
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
05-01-2021, THE COURT ON 07-01-2021 DELIVERED THE
FOLLOWING:
R.S.A.No.758/2015 3
C.S.DIAS, J.
------------------------------------------------------------------
R.S.A.No.758 of 2015
---------------------------------------------------------
Dated this the 07th day of January, 2021
JUDGMENT
The appellants are the defendants 2 and 4 in I.A.No.10933 of 1993 in O.S.No.421 of 1984 on the file of the Court of the Munsiff, Thiruvananthapuram (Trial Court). The respondents 1 to 3 are the plaintiffs 3 to 5 and the respondents 4 and 5 are the defendants 3 and 5 in the suit. The original plaintiff (1st plaintiff) as well as the 1 st defendant died during the course of the litigation. The parties are, for the sake of convenience, referred to as per the status in the original suit.
2. The 1st plaintiff had filed the suit seeking a decree for declaration of title, redemption of mortgage and fixation of boundary of the plaint schedule property. The 1 st plaintiff and 1st defendant are brothers. Plaint Item No.1 schedule property was allotted as the share of the 1st plaintiff along R.S.A.No.758/2015 4 with other properties. The properties were mortgaged at the time of partition. The brothers were permitted to redeem the mortgage of their respective shares. However, the 1st defendant paid the mortgage amount and redeemed the mortgage in respect of the entire property. Therefore, the 1st plaintiff was constrained to file the suit.
3. The Trial Court passed a preliminary decree as prayed for and directed the 1st defendant to surrender possession of plaint Item No.1 schedule property to the plaintiff.
4. Challenging the preliminary decree, the 1 st defendant preferred A.S.No.29 of 1994 before the lower Appellate Court. The appeal was dismissed for default. Although, the 1st defendant filed a review petition and a conditional order was passed, the 1 st defendant failed to comply with the conditional order. Resultantly, the review petition was also dismissed. Thus, the preliminary decree became final.
R.S.A.No.758/2015 5
5. As the 1st defendant did not comply with the directions in the preliminary decree, the 1 st plaintiff filed I.A.No.10933 of 1993 for passing of the final decree. The 1 st plaintiff also deposited the mortgage amount. The 1 st defendant did not file any written objection to the final decree application.
6. The Trial Court, by its order dated 20.09.2006, allowed the application and passed the final decree for redemption of mortgage.
7. The defendants 2 and 4 (appellants) filed A.S.No.61 of 2008 before the lower Appellate Court. The lower Appellate Court, after considering the pleadings and materials on record, by the impugned judgment and decree confirmed the order passed by the Trial Court.
8. Aggrieved by the concurrent findings of the courts below that the appellants are before this Court through this second appeal, raising the following substantial questions of law:
R.S.A.No.758/2015 6
"A) Has not the trial court erred in passing the order dated 12-06-2006 in I.A.No.9625 & 9626 of 2005 to restore I.A.No.10933 of 1993?
B) Have not the lower courts erred in entertaining I.A.No.10933 of 1993 based upon the deposit dated 14-07-1993 made subsequent to the time specified by the preliminary decree having lapsed and in the absence of any request from the plaintiffs for extension of time under Order XXXIV Rule 7(2) of the CPC (Central Act)?
C) Is not the final decree for redemption illegal in view of the fact that the court has adopted an amalgamation of the procedure as prescribed under Order XXXIV CPC (as enacted by the Union of India) and Order XXXIV CPC as substituted by the Government of Kerala?
D) Have not the lower courts erred in granting a decree for recovery of possession of the plaint item No.1 property without taking into account the change of circumstances therein subsequent to the preliminary decree in 1993?"
9. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the R.S.A.No.758/2015 7 respondents 2 and 3.
10. It is an undisputed fact that even though the appellants challenged the preliminary decree by filing A.S.No.29 of 1994, the same was dismissed. Hence, the findings in the preliminary decree have become final and conclusive.
11. The Trial Court considering the fact the preliminary decree had become final; that the 1 st defendant had not filed any written objection to the final decree application and also that the plaintiff had deposited the mortgage amount, allowed I.A.No.10933 of 1993 by passing the final decree for redemption of mortgage.
12. The lower Appellate Court, after re-appreciating the facts and materials on record, finding that there was no illegality or error in the order passed by the Trial Court, especially in the light of Article 137 of the Limitation Act, 1963, dismissed the appeal.
13. According to me, the courts below have rightly R.S.A.No.758/2015 8 allowed the final decree application, taking note of the fact that the preliminary decree had become final, that the defendant(s) had not filed any written objection to the final decree application and that the 1st plaintiff had made the deposit of the mortgage amount. As the defendant(s) have not chosen to file any written objection to the final decree application, they cannot be permitted to now contend that the Courts below have gone wrong in allowing the final decree application.
14. There is no question of law involved in the appeal, much less any substantial question of law. The appeal fails and is accordingly dismissed.
Sd/-
C.S.DIAS, JUDGE DG