Reynold Mendez vs Reynold Mendez
2021 Latest Caselaw 8097 Ker

           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.
                  -----------------------------------------------
               Original Petition (Civil) No.1635 of 2020
                  -----------------------------------------------
               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

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.

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

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.