Kerala High Court
Subramanian vs Thankamani on 23 June, 2022
OP(C) NO. 455 OF 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
OP(C) NO. 455 OF 2022
AGAINST THE ORDER/JUDGMENT IN AS 11/2021 OF SUB
COURT,IRINJALAKUDA
PETITIONER/S:
1 SUBRAMANIAN,
AGED 46 YEARS
S/O. LATE KOCHUMON, CHALIPURATH HOUSE, KARUVANNOOR
DESOM, PORATHISSERY VILLAGE, KARUVANNOOR P.O,
MUKUNDAPURAM TALUK, THRISSUR 680 711.
2 MANIKANDAN,
AGED 51 YEARS
S/O. LATE KOCHUMON, CHALIPURATH HOUSE, KARUVANNOOR
DESOM, PORATHISSERY VILLAGE, KARUVANNOOR P.O,
MUKUNDAPURAM TALUK, THRISSUR 680 711.
3 ANILAN,
AGED 53 YEARS
S/O. LATE KOCHUMON, CHALIPURATH HOUSE, KARUVANNOOR
DESOM, PORATHISSERY VILLAGE, KARUVANNOOR P.O,
MUKUNDAPURAM TALUK, THRISSUR 680 711.
4 SUNITHA,
AGED 48 YEARS
D/O. LATE KOCHUMON, CHALIPURATH HOUSE, KARUVANNOOR
DESOM, PORATHISSERY VILLAGE, KARUVANNOOR P.O,
MUKUNDAPURAM TALUK, THRISSUR 680 711.
5 AMBIKA,
AGED 51 YEARS
W/O. LATE UNNIKRISHNAN, CHALIPURATH HOUSE,
MAPRANAM DESOM, MADAYIKONAM VILLAGE, MADAYIKONAM
P.O, MUKUNDAPURAM TALUK, THRISSUR 680 712.
6 ANUSREE (MINOR),
AGED 16 YEARS
D/O. LATE UNNIKRISHNAN, CHALIPURATH HOUSE,
OP(C) NO. 455 OF 2022
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MAPRANAM DESOM, MADAYIKONAM VILLAGE, MADAYIKONAM
P.O, MUKUNDAPURAM TALUK, THRISSUR 680 712.,
REPRESENTED BY HER MOTHER AND GUARDIAN AMBIKA,
AGED 51 YEARS, W/O LATE UNNIKRISHNAN, CHALIPURATH
HOUSE, MAPRANAM DESOM, MADAYIKONAM VILLAGE,
MADAYIKONAM P.O, MUKUNDAPURAM TALUK, THRISSUR 680
712.
BY ADVS.
SREEDEVI KYLASANATH
ACHUTH KYLAS
R.MAHESH MENON
DEAGO JOHN K
RESPONDENT/S:
1 THANKAMANI,
D/O. LATE CHALIPURATH KOCHUKUTTAN, W/O. KUNNATH
BHASKARAN, KATTOOR DESOM, VILLAGE AND P.O,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 701
2 SIDHAN,
S/O. LATE CHALIPURATH KOCHUMOL KUTTIKKATTUPARAMBIL
RAGHAVAN, CHEVOOR DESOM, VILLAGE AND P.O, THRISSUR
680 027.
3 LATHA,
AGED 55 YEARS
D/O. LATE CHALIPURATH KOCHUMOL AND W/O. ATHIKAVIL
RAJAN, PANAMKULAM DESOM, URAKAM VILLAGE,
KARUVANNOOR P.O, THRISSUR 680 711.
4 SOBHANA,
AGED 62 YEARS
D/O LATE CHALIPURATH KOCHUMOL AND W/O. PAMBUKADAN
CHANDRAN, CHEVOOR DESOM AND VILLAGE , CHEVOOR P.O,
THRISSUR-680 027
5 JOSHI,
AGED 50 YEARS
S/O. LATE CHALIPURATH KOCHUMOL AND
KUTTIKKATTUPARAMBIL RAGHAVAN, CHEVOOR DESOM AND
VILLAGE, CHEVOOR P.O, THRISSUR-680 027
OP(C) NO. 455 OF 2022
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6 GIRIJAN,
AGED 65 YEARS
S/O. LATE CHALIPURATH CHANDRIKA AND KATTIPARAMBIL
UNNICHEKKAN, CPONUUKARA DESOM, THRIKKOOR VILLAGE,
MUKUNDAPURAM TALUK, THRIKKOOR P.O, THRISUR 680
306.
7 THILAKAN,
AGED 50 YEARS
S/O. LATE CHALIPURATH CHANDRIKA AND KATTIPARAMBIL
UNNICHEKKAN, PONNUKARA DESOM, THRIKKOOR VILLAGE,
MUKUNDAPURAM TALUK, THRIKKOOR P.O, THRISSUR 680
306.
8 APPU,
AGED 48 YEARS
S/O. LATE CHALIPURATH CHANDRIKA AND KATTIPARAMBIL
UNNICHEKKAN, PONUKKARA DESOM, THRIKKOOR VILLAGE,
MUKUNDAPURAM TALUK, THRIKKOOR P.O, THRISSUR 680
306.
9 KANNAN,
AGED 42 YEARS
S/O. LATE CHALIPURATH CHANDRIKA AND KATTIPARAMBIL
UNNICHEKKAN, PONUUKKARA DESOM, THRIKKOOR VILLAGE,
MUKUNDAPURAM TALUK, THRIKKOOR P.O, THRISSUR 680
306.
10 MANEESH,
AGED 25 YEARS
S/O.LATE KATTIPARAMBIL MANI, PONUUKKARA DESOM,
THRIKKOOR VILLAGE, MUKUNDAPURAM TALUK, THRIKKOOR
P.O, THRISSUR 680 306.
11 MANJU,
AGED 22 YEARS
D/O. LATE KATTIPARAMBIL MANI, PONUUKKARA DESOM,
THRIKKOOR VILLAGE, MUKUNDAPURAM TALUK, THRIKKOOR
P.O, THRISSUR 680 306.
12 KALIYANI,
AGED 68 YEARS
D/O. LATE CHALIPURATH KOCHUKUTTAN AND W/O.
THAIKOODAN DHARMAN, KARUVANNUR DESOM, PORATHISSERY
VILLAGE, KARUVANNOOR P.O, MUKUNDAPURAM TALUK,
OP(C) NO. 455 OF 2022
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THRISSUR-680 711
13 OMANA,
AGED 60 YEARS
D/O. LATE CHALIPURATH KOCHUKUTTAN AND W/O.
KUTTASSERY BALAN, KARUVANNUR DESOM, PORATHISSERY
VILLAGE, KARUVANNOOR P.O, MUKUNDAPURAM TALUK,
THRISSUR-680 711
14 RAJAN,
AGED 71 YEARS
S/O.LATE KOCHUKUTTAN, CHALIPURATH HOUSE,
KARUVANNOOR DESOM, PORATHISSERY VILLAGE,
KARUVANNOOR P.O, MUKUNDAPURAM TALUK, THRISSUR 680
711, PRESENTLY RESIDING AT CHALIPURATH HOUSE,
KATTOR DESOM AND VILLAGE, KATTOOR P.O,
MUKUNDAPURAM TALUK, THRISSUR 680 701.
15 SUJITH,
AGED 30 YEARS
S/O.RAJAN, CHALIPURATH HOUSE, KARUVANNOOR DESOM,
PORATHISSERY VILLAGE P.O KARUVANNOOR-680 711 ,
MUKUNDAPURAM TALUK, PRESENTLY RESIDING AT
CHALIPURATH HOUSE, KATTOOR DESOM AND VILLAGE, P.O.
KATTOOR-680 701, MUKUNDAPURAM TALUK.
BY ADVS.
MAYA M
V.M.KRISHNAKUMAR(K/459/1991)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 455 OF 2022
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JUDGMENT
The original petition is filed to direct the Court of
the Subordinate Judge, Irinjalakuda to consider and
dispose of I.A.No.1/2021 (Ext.P3) and I.A.No.2/2021
(Ext.P4) in A.S.No.11/2021, within a time frame.
2. The petitioners are the appellants in the above
appeal, which is filed against the respondents and
challenging the judgment and decree passed by the
Court of the Additional Munsiff, Irinjalkuda in
O.S.No.610/2010. The petitioners contend that after the
passing of Ext.P1 and P1(a) judgment and decree, they
had entrusted the file with a Lawyer to file the appeal.
The Lawyer assured them that the appeal was filed and
an order of stay was passed. Later, they came to learn
that the Lawyer was undergoing treatment for renal
failure. Thus the petitioners took back the file from the
said Lawyer and have now filed Ext.P2 appeal. They
have also filed Exts.P3 and P4 applications to stay the
OP(C) NO. 455 OF 2022
impugned judgment and decree, and also to condone
the delay in filing the appeal. However, since service of
notice on the 15th respondent is not completed, who is
said to be employed abroad, Exts.P3 and P4 are not
being considered. In the meantime, the respondents are
hastily proceeding with the execution petition. If the
respondents go ahead with the execution, the appeal
would be rendered infructuous, which in turn will casue
them severe prejudice. Hence, the original petition.
3. Pursuant to the order dated 08.03.2022 passed
by this Court, the Court of the Munsiff, Irinjalakuda has
by communication dated 11.03.2022, informed this
Court that the respondents have filed
I.A.No.10095/2015 to pass a final decree in the suit. The
case is posted for the Commission Report. The learned
Munsiff has sought one month to dispose of the final
decree application.
4. Heard; Sri. Achuth Kylas, the learned counsel
OP(C) NO. 455 OF 2022
appearing for the petitioners and Smt.Maya M., the
learned counsel appearing for the respondents 1 to 14.
5. The learned counsel appearing for the
respondents 1 to 14 submits that since the 15 th
respondent is employed abroad, she cannot enter
appearance for him. Thus, in view of the limited relief I
propose to pass, I dispense with notice to the 15 th
respondent.
6. Admittedly, the petitioners have filed Ext.P2
appeal before the Appellate Court challenging Exts.P1
and P1(a) judgment and decree. Whatever be the merits
or the reasons stated in the affidavit filed in support of
Ext.P4 application, to condone the delay in filing the
appeal, the application has to be considered by the
Appellate Court on its merits. Undisputedly, Ext.P4
application is not being considered because the 15 th
respondent cannot be served with notice. Taking into
consideration, the peculiar facts and circumstances of
OP(C) NO. 455 OF 2022
the case and also that the respondents are substantially
represented in the appeal, I am of the firm view that the
petitioners' indefeasible right cannot be defeated,
merely for the reason that he cannot be served with
notice as he is employed abroad. Therefore, in exercise
of the supervisory powers of this Court under Article
227 of the Constitution of India and to do substantial
justice to the parties, I dispose of this original petition
as follows:
(i) As the respondents 1 to 14 have entered
appearance in A.S.No.11/2021 of the Court of the
Subordinate Judge, Irinjalakuda, and there is
substantial representation for the 15th respondent,
I dispense with notice to the 15th respondent in
Exts.P3 and P4 application. The respondents may
file their counter affidavit, if any, to Exts.P3 and
P4 applications within two weeks from the date of
receipt of a certified copy of this judgment.
OP(C) NO. 455 OF 2022
(ii) Immediately on the counter affidavits being filed
or after the expiry of the period of two weeks, the
Appellate Court shall consider Exts.P3 and P4 in
accordance with law, and pass orders on the
applications within a further period of two weeks
after the time period fixed in condition No.2 has
expired, without the insistence of service of notice
on the 15th respondent in Exts.P3 and P4.
(iii) Until such time orders are passed on Exts.P3 and
P4 applications, all further proceedings in
I.A.No.10095/2015 in O.S.No.610/2010 of the
Court of the Additional Munsiff, Irinjalakuda shall
be kept in abeyance.
The original petition is ordered accordingly.
Sd/-
C.S.DIAS, JUDGE
rkc/23.06.22
OP(C) NO. 455 OF 2022
APPENDIX OF OP(C) 455/2022
PETITIONERS' EXHIBITS
Exhibit P1 A TRUE COPY OF THE JUDGMENT PASSED BY
ADDL. MUNSIFF'S COURT AT IRINJALAKUDA IN
O.S. NO. 610 OF 2010 DATED 31.08.2015.
EXHIBIT P1A A TRUE COPY OF TEH DECREE PASSED BY
ADDL. MUNSIFF'S COURT AT IRINJALAKUDA IN
OS NO.610/10 DATED 31.08.15
Exhibit P2 A TRUE COPY OF THE DECREE PASSED BY
ADDL. MUNSIFF'S COURT AT IRINJALAKUDA IN
O.S. NO. 610 OF 2010 DATED 31.08.2015.
Exhibit P3 A TRUE COPY OF THE I.A. NO. 1 OF 2021 IN
A.S. NO. 11 OF 2021 FILED BY THE
PETITIONERS BEFORE THE HON'BLE SUB COURT
AT IRINJALAKUDA TO STAY THE OPERATION OF
EXT. P1 JUDGMENT.
Exhibit P4 A TRUE COPY OF THE I.A. NO. 2/2021 IN
A.S. NO. 11 OF 2021 FILED BY THE
PETITIONERS BEFORE THE HON'BLE SUB COURT
AT IRINJALAKUDA FOR CONDONATION OF DELAY
OF 1975 DAYS.
