Kerala High Court

2S vs Ali on 20 January, 2021

RFA.No.43 OF 2007

1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

RFA.No.43 OF 2007

AGAINST THE DECREE AND JUDGMENT IN OS NO.79/2005 DATED

APPELLANTS :

1

2s

23-09-2006 OF SUB COURT, QUILANDY

PERUTHIKKUNNAN HAMZA,
S/O. AHAMMEDKUTTY,

AGED 48 YEARS, PERUMANNA AMSOM,
KLARI DESOM,, THIRUR TALUK,
MALAPPURAM DISTRICT.

PAZHAYAKATH KADHERKUTTY,

$/O. KUNHAMMED

AGED 64 YEARS, THALAKKAD AMSOM DESOM,,
THIRUR TALUK, MALAPPURAM DISTRICT.
(DIED-LRs IMPLEADED)

KAZEUNGIL KUNHIKAMMOOTTY
S/O. KUNHIPOCKER, AGED 52 YEARS,
PERUMANNA AMSOM, ,

PUTHUR DESOM, THIRUR TALUK,
MALAPPURAM DISTRICT.

MIMUNA, D/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE,

PERUMANNA AMSOM,

KLARI DESOM, KUTTUIPALA P.O.,

TIRUR TALUK, MALAPPURAM, PIN-676501

MUHAMMED IKBAL

S/O LATE KADHERKUTTY,

PERUTHIKUNNU HOUSE,

PERUMANNA AMSOM,

KLARI DESOM, KUTTUIPALA P.O.,

TIRUR TALUK, MALAPPURAM, PIN-676501

SHAMSUDDIN
S/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE, PERUMANNA AMSOM,
 

RFA.No.43 OF 2007
2

KLARI DESOM, KUTTUIPALA P.O., TIRUR TALUK,
MALAPPURAM, PIN-676501

7 RAIHANATH
D/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE,
PERUMANNA AMSOM,
KLARI DESOM, KUTTUIPALA P.O.,
TIRUR TALUK, MALAPPURAM, PIN-676501

8 SAUDATH BEEVI
D/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE,
PERUMANNA AMSOM,
KLARI DESOM, KUTTUIPALA P.O.,
TIRUR TALUK,
MALAPPURAM, PIN-676501

9 MUHAMMED SHERIF.P.
S/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE,
PERUMANNA AMSOM,
KLARI DESOM, KUTTUIPALA P.O.,
TIRUR TALUK,
MALAPPURAM, PIN-676501

10 ABDUL FIZAL
$/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE, PERUMANNA AMSOM,
KLARI DESOM, KUTTUIPALA P.O.,
TIRUR TALUK, MALAPPURAM, PIN-676501

11 MUHAMMED SHAG.P.
S/O LATE KADHERKUTTY,
PERUTHIKUNNU HOUSE, PERUMANNA AMSOM,
KLARI DESOM, KUTTUIPALA FP.0.,
TIRUR TALUK, MALAPPURAM, PIN-676501

(LEGAL HEIRS OF THE DECEASED 2ND APPELLANT ARE
IMPLEADED AS ADDL. A4 TO All VIDE ORDER DATED
04.03.2020 IN IA.1/2020)

BY ADVS.

SRI .K . RAMACHANDRAN
SMT .A.R.DIVYA

SMT .M.MANJU

SMT .R.MEERA
SRI.R.SUDHISH

SRI .K.RAMACHANDRAN
 

RFA.No.43 OF 2007

RESPONDENT :

ALI
RESIDING AT POOLAKKAL HOUSE,
ULLIYERI AMSOM,DESOM,,
KOYILANDY TALUK.

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 

RFA .No.43 OF 2007

JUDGMENT

Dated this the 20" day of January, 2021

By order dated 04.03.2020, this Court directed the parties to appear before the Nodal Officer, District Mediation Centre, Kozhikode for mediation. Accordingly, the Mediator filed report dated 06.01.2021 through the District Co-ordinator, Kozhikode stating that the matter has been settled between the parties in mediation in accordance with the agreement enclosed. The mediation agreement is recorded and the appeal is decreed in terms of the mediation agreement.

2. As per the terms of the agreement, both parties are agreed to modify the decree to the extent to set aside the recovery of court fee from the plaintiff under the provisions of Order XXXIII Rule 10 of the C.P.C. Further, both parties agreed that if the appellate court failed to modify the decree to the extent setting aside the recovery portion of court fee from the respondent/plaintiff, who had filed O.S.No.79 of 2005 as an indigent, they should pay the court fee which was paid by the respondent/plaintiff in the suit. The 6% appellant is the power of attorney holder of 5" and 11" appellants. The both power of attorney are produced along with the mediation

agreement. All the terms contemplated under the mediation

RFA.No.43 OF 2007

agreement will form part of the decree. The trial court decree stands modified in terms of the mediation agreement entered into between the parties.

Resultantly, the appellant herein is at liberty to get the entire court fee repaid in the RFA before this Court. The Registry is

directed to send back the records to the trial court forthwith.

Sd/-

N.ANIL KUMAR, JUDGE

dik/20.01.2021

004094 No. 230/20/DMCIKKD cm, Office of the ' Moin Fos cll pe N District Mediation Centre

Kozhikode dated og. 04 2alp

ORY

SOY 15 JAN po ' ve so A. y

wae wan we

From Oe wen eee

Unnikrishnan.A.V. (Sub Judge) Co-ordinator

To The Registrar (Judicial) High Court of Kerala Ernakulam ~ 682031 Sir,

Sub:- Mediation -- report of Mediator ~-Forwarding of - reg. Ref:- 1. Order dated 23.09.2020 of Hon'ble High Court of Kerala.

2. Report of Mediator dated 06.01.2021. The report of the Mediator, regarding the mediation conducted in Case No. RFA 43/2007 of High Court of Kerala which was referred for mediation as per the order cited 1* under reference, is forwarded herewith for favour of information and

necessary action.

Yours faithfully,

Encl:

1. Report of Mediators

2. Mediation agreement

3. Power of Attorney (2 nos.)

Adv. M. Nisha Aekanath, Mediator

Kozhikode District Mediation Centre, Kozhikode -- 673032

Mob: 94473870106

Date: 06-01-2021

Kozhikode To, The Co-ordinator/ District Judge Kozhikode District Mediation Centre, Kozhikode. Madam,

Sub: Mediation regarding RFA. 43/2007 pending before the Hon'ble High Court of Kerala.

| have mediated the above reference on 25-11-2020 and 06-01-2021. The matter is settled between the parties in mediation and agreement is

herewith enclosed.

Exmele sseunns. Yours faithfully,

Me oly alam nap nerent-

Mediator

2. Power of ~Hevasey

' POWER OF ATTORNEY

KNOW ALL MEN THESE PRESENTS that I, PAZHAYAKATH MOHAMED IQUEBAL, (Passport No.L 6651392) S/o.Kader Kutty, aged 60 years, resident of Pazhayakath House, Betathpudiangadi(P.0),

iY = sg AEE ==

PIN-676102, Malappuram District, Kerala State, India, now working at DOHA, QATAR do here by nominate, constitue and appoint my brother

#SHAMSUPEEN, S/o. Kader Kutty, aged 57 years, resident of Pazhayakath fe Me pBuse figtathpuciangad (P.O), Thalakkad Amsom, Desom, PIN-676102,

£ a o Malagpstiam District, Kerala State, India, as my attorney in my name a gis ang! gh my behalf to do or exec oN of the following acts or things. ESL soomy 3 ' 2 '

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O60 Stet KERALA CN 198084

Kerala, civil, criminal, Revenue or rent control or family court whether original or appellate and in any other office of Government, Panchayath or any other jocal authorities.

A f 1. To appear and act in all the courts, including High Court of i i

2. To represent me before the all courts to all intents and A

_gpurpose in in connection with the any case including cases relates to my

& 3 f iSrrovgllg properties and money suits. =

g £ es £ <3 To appear for and prosecute and defend all actions and

-8 pretadings and to sign and verify all documents.

& 2 4. To sign and verify all petitions, written statement, counters,

es ae "s *

piiavis, applications and ail Ic

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5. To engage and appoint any advecatecetadwocatesxeats of

this docurne counsel to act and plead and otherwise conduct the said cases

whenever my said attorney thinks proper to do so.

6. To make and present applications "berate The Couagh Ri" connection with di Emi of India, Doha [Qatar} any proceedings i any case. 34 oR let [pen

FO smite ames LATTER Se fret

7. To produce or summon or receive back. a anekits sasenreuvnnensere PY sofSeea H ReeTaN Pee aT]

COPIES. Signed in my presence.

8. To deposit and withdraw any money for the purpose pile)

proceedings. HES

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9. To give evidence in the proceeding, : \ wars) , attache

10. To settle the matter witn the permisdion et the thecarna Embassy of india

Or z] Gone {Gatar]

11. To compromise, compeund or withdraw Cases, to €Hhiess

judgments and to refer case for arbitrations.

12. To accept service of any summons or notices issued by

any court or offices against m

13. Generally to do all other lawful acts, deeds, and things necessary for conduct of cases.

AND | hereby agree that aii acts, deeds and things lawiully done by the said attorney shall be construed as acts, deeds and things done by me and | undertake to ratify and confirm all and whatsoever that my said attorney shall lawfully to or cause to be done for me by

virtue of the power hereby given.

rsa IN WITNESS WHEREOF | have signed this DEED on this the 22°' day of January 2020. PAZHAYAKATH MO HAMED IGUPBAL

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POWER OF ATTORNEY >

KNOW ALL MEN BY THESE PRESENT THAT I, MOHAMMED SHAJ PAZHAYEKATH.

aged 46 years, S/o Kader kutty Pazhayekath, permanently residing at Pazhay ekath House, Thalakkad (PO) B.P.Angadi, Tirur Taluk, Malappuram Dist rict, Kerala State,

loyement purpose, I do here by nominate, constitute and appoint My Brother Mr. SHAMSUDHEEN aged 57 years S/o Kaderkutty perman ently residing at Pazhayek

F F j India now Iam working at, ABU DHABI, UAE (Passport No,M-9706954) for the emp i i ath House, Thalakkad (PO) B.P.Angadi, Tirur Taluk,Malappuram District, Kerala State

India as my attorney in my name an? on my behalf to do or execute all or any of the

following acts or things.

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To appear and act in all the courts, including High Court of Kerala, civil,criminal, hevenue or rent control or Family Court whether original or appellate and in any ther office of Government, Panchayath or any other local authorities.

iP. To represent me before the all courts to all intents and purpose in connection with ghe any case including cases relates to my immovable properties and money suits.

3. To appear for and prosecute and defend all actions and proceedings and sign and F erify all documents.

k. To sign and verify all petitions, written statement,counters, affidavits, applications and all other pleadings. . |

P. To engage and appoint any advocate or advocates or counsel to act and plead and

rent ° A st pesponsible for co _ | | o\ A AM. Roce eo OS Minn COOC, t.§

eft. "8 Con Pp AQ Pee egy a oye BRO eo

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Bnerwise conduct the said cases whenever my said attorney thinks proper to do so.

6. To make and present applications before the court in connection with any proceed- ings in any case

7. To produce or summon or receive back documents and its copies.

8. To deposit and withdraw any money for the purpose of the proceedings.

9. To give evidence in the Proceedings.

10. To settle the matter with the permission of the court.

11. To compromise,compound or withdraw cases, to confess judgments and to refer case for arbitrations.

12. To accept service of any summons or notices issued by any court or offices against me.

13. Generally to do all other lawful acts, deeds, and things necessary for conduct of cases.

And I here by agree that all acts,deeds and things lawfully done by the said attorney shall be construed as acts, deeds and things done by me and I undertake to ratify and confirm all and whatsover that my said attorney shall lawfully do or cause to be done for me by virtue of the Powe hereby given IN WITNESS WHEREOF I have signed this DEED on this the day 1 of pecembed 2020

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--_--* rail oon Meena Attaché

Embassy Of India Abu Dhabi, UAS

14 DEC 2020

BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM R.F.A.No.43 of 2007

Peruthikunnan Hamsa & others -- Appellants Ali.K

-- Respondent APPELLANT /DEFENDANT

1. Peruthikunnan Hamza, S/o Ahammedkutty, aged 48 years, Perumanna amsom, Klari Desom, Thirur Taluk, Malappuram District.

2. Pazhayakath Kadherkutty (Died), S/o Kunhammed, aged 64 years, Thalakkad amsom, desom, Thirur Taluk, Malappuram District.

3, Kazhaungil Kunhikammootty, S/o Kunhipocker, aged 52 years, Perumanna amsom, FPuthur Desom, Thirur Taluk, Malappuram District.

4,.Mimuna, D/o Late Kadherkutty, Peruthikunnu House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

5. Muhammed Ikbal, S/o Late Kadherkutty, Peruthikunnu House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

6. Shamsudhin, S/o Late Kadherkutty, Peruthikunnu House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur

Taluk, Malappuram, Pin-676501. Mohamed Ske gee: P 6S Pk. Mong ic 1B , Brio al he zak - #. nod

POA, he oo POA ¢ Mpenmag He et [ohare 4 8h GO een ji ** Ar ik. Se

7. Raihanath, D/o Late Kadherkutty, Peruthikunnu House, ® Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

8. Saudath Beevi, D/o Late Kadherkutty, Peruthikunnu House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

9. Muhammed Sherif.P., S/o Late Kadherkutty, Peruthikunnu House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

10.Abdul Fizal, S/o Late Kadherkutty, Peruthikunnu House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

11.Muhammed Shag.P, S/o Late Kadherkutty, Peruthikunnu 6 House, Perumanna amsom, Klari Desom Kuttuipala.P.O., Thirur Taluk, Malappuram, Pin-676501.

Legal Heirs of the Deceased 2™4 Appellant are impleaded as Addl. A4 to All vide order dated 04-03-2020 in I.A.No.1/2020

RESPONDENT / PLAINTIFF

Ali, S/o Aboobacker Haji, residing at Poolakkal House, Ulliyeri amsom desom, Koyilandy Taluk.

Memorandum of Agreement executed under Sec. 89 of

@ C.P.C.R/w Rule 24 of the ADR Rules, 2008.

The disputes covered in the above case were referred to Mediation Centre at Calicut. The parties have agreed to settle the

dispute as hereunder.

In order to resolve the entire issue in these cases, both parties agreed to abide by the following, mutually agreed conditions.

i) Appellants have already paid Rs.16,00,000/- (Rupees

Sixteen Lakhs anly) to the respondent for the full satisfaction of the i ke uk x mohamed Skereod P wa

rbot taza). f

sae ce ol Bedi, Plo af Go Be,

aL pent Ahh .

Rech ow. i Mia's I<, wy

® decree. The respondent had already received Rs.16 Lakhs and

acknowledged the receipt of the same. Hence the parties are not

proceedings with the case.

ii) Both the parties are agreed to modify the decree to the

extent to set aside the recovery of Court Fee from the plaintiff under the provisions of Order XXXI Rule 10 of C.P.C.

iii) The respondent is agreed to permit the appellants to

withdraw the appeal by passing a compromise decree as per the

terms of the mediation agreement. The mediation agreement shall

be part of the judgment and Decree.

iv) The appellant are liberty to get the entire Court Fee paid in the Regular First Appeal R.F.A. No.43 of 2007 before this Hon'ble Court.

v) The Appellant is agreed to vacate the attachment for the plaint schedule property on satisfying the terms of the agreement. vi} The appellants are hereby agreed that if the Appellate Court failed to modify the decree to the extent setting aside the recovery ¥

portion of Court Fee from the respondent/plaintiff, who was filed O.S.No.79 of 2005 as an indigent, they shall pay the Court fee which was paid by the respondent/plaintiff in the suit. The 6% appellant has got the power of attorney of both 5% and 11™ appellants who here the brothers of the power of attorney holder. The both power of attorney are here with produced by the 6%

appellant and the same may be received.

kk Ha ' bein Nyohamed Sheqee f-P Ow SA"

poate Fa f and ~s eerie rae od sy Bnet...

gun

In view of the terms of settlement arrived at this Hon'ble e Court be pleased to dispose this appeal as settled forming this

terms of the settlement as a part of the judgment.

We are ready to appear before this Hon'ble High Court of Kerala on 27 day of January, 2021.

Dated this the & "day of January, 2021 Kr bop: Pk. be bert) ;

ds . bu! Z

Advocate for Appellants 6) eS

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