Kerala High Court
In I.A.No.4/2021 In O.S.No. ... vs By Adv. Smt.Resmi Nandanan on 23 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
OP(C).No.453 OF 2021
IN I.A.NO.4/2021 IN O.S.NO. 198/2018 OF MUNSIFF COURT,
VAIKOM
PETITIONER/PETITIONER/3RD PARTY
M.JOSEPH CHNADY,
AGED 70 YEARS,
S/O.KURIAKOSE JOSEPH,
EX-SERVICEMAN, RESIDING AT KUZHUVELIL,
PAZHTHURUTHU, THIRUVAMBADI P.O.,
NJEEZHOOR, KOTTAYAM,
KERALA-686 612.
BY ADV. SMT.RESMI NANDANAN
RESPONDENTS/ RESPONDENTS/PLAINTIFF & DEFENDANTS NO.1&2:
1 NEELAKANDAN NAMBOOTHIRI,
AGED 78 YEARS,
S/O.LATE DAMODHARAN NAMBOOTHIRI, PENSIONER,
MADATHIPARAMBU ILLAM HOUSE, NJEEZHOOR P.O.,
VAIKOM, KOTTAYAM-686 612, (ORIGINAL PLAINTIFF).
2 SREENIVASAN,
AGED ABOUT 56 YEARS, S/O.NARAYANAN ILLAYATHU @
THYKATTU ILLAM, NJEEZHOOR P.O.,
VAIKOM-686 612, (ORIGINAL 1ST DEFENDANT).
3 AJITHAKUMARI,
AGED ABOUT 51 YEARS, W/O.SREENIVASAN,
MADATHIPARAMBU ILLATHU @ THYKATTU ILLAM,
NJEEZHOOR P.O., VAIKOAM-686 612,
(ORIGINAL 2ND DEFENDANT).
R2-3 BY ADVS. SRI.JOBI.A.THAMPI
SMT.M.KABANI DINESH
SRI.SHOUKATH HUSAIN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.453/2021
-:2:-
Dated this the 23rd day of March,2021
J U D G M E N T
The petitioner is a third party to
proceedings pending before Munsiff Court, Vaikom.
He filed Ext.P5[I.A.No.4/2021] under Section 151
read with Sections 141 &94(e) of the Code of Civil
Procedure,1908(for short, 'the C.P.C.') for
declaring title and possession over suit property
and dismissing the application filed by original
defendants for setting aside the ex parte decree.
2. The first respondent herein, who is the
original plaintiff in O.S.No.198/2018 obtained an
ex parte decree cancelling documents executed by
him in favour of original defendants who are his
son-in-law and daughter. The ex parte decree was
passed on 25.07.2019. After cancelling the
documents, the plaintiff sold the suit property in
favour of the petitioner herein.
3. According to the petitioner, he is a bona
fide purchaser who is entitled to title and
possession of the suit property. The original
defendants filed Exts.P3 and P4 applications
seeking to set aside the ex parte decree after
O.P.(C)No.453/2021
condoning delay. These applications are pending on
the file of Munsiff Court, Vaikom undisposed of.
4. The grievance expressed by the petitioner
is that in the event of delay being condoned and
ex parte decree consequentially set aside, he
would be put to untold miseries and hardship.
Therefore, he filed Ext.P5 application for
necessary reliefs.
5. The learned counsel for respondent Nos.2
and 3 submitted that Ext.P5 application is not
maintainable under law and no relief could be
granted by the court below.
6. After hearing the learned counsel on both
sides, I am of the opinion that the legal remedy
open to the petitioner is to invoke Order I Rule
10(2) of the C.P.C. and apply to court below to
permit him to be impleaded as additional party to
the suit. Inasmuch as the petitioner is an
assignee of the suit property, he steps into the
shoes of the original plaintiff under law and
thereby acquires right to oppose applications
filed for condoning delay and setting aside ex
parte decree. Once the petitioner applies for
being impleaded as additional party to the
O.P.(C)No.453/2021
proceedings, the court below shall consider the
application and permit him to be impleaded as
additional party to the proceedings.
7. This original petition filed for issue of
direction to the court below to take up Ext.P5
prior to the consideration of Exts.P3 and P4 is
not maintainable under law and no relief can be
granted to the petitioner in that respect.
In the result, original petition is
dismissed. It is, however, made clear that it will
be open to the petitioner to approach the court
below and file an application under Order I Rule
10(2) of the C.P.C., seeking permission to implead
him as additional party to the suit. If such an
application is filed, the court below shall permit
the petitioner to join the proceedings as
additional party.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.453/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEED NO.1101/2020
DATED 24.11.2020.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
25.07.2019 IN OS NO.198/2018 ON THE
FILE OF MUNSIFF COURT, VAIKOM.
EXHIBIT P3 TRUE COPY OF THE IA NO.76/2020 IN OS
NO.198/18 FILED BY THE 2ND AND 3RD
RESPONDENTS.
EXHIBIT P4 TRUE COPY OF THE IA NO.77/2020 IN OS
NO.198/18 FILED BY THE 2ND AND 3RD
RESPONDENTS.
EXHIBIT P5 TRUE COPY OF THE IA NO.4/2021 IN OS
NO.198/18 FILED BY THE PETITIONER.
RESPONDENTS' EXHIBITS: NIL
