Kerala High Court
Sobha vs Jagathy Sreekumar on 7 January, 2021
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.
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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
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.
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:
"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
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
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
