Jawahar vs Mrs.Sumathy Shenoy *(Expired)
2022 Latest Caselaw 10620 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
  FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
                       OP(C) NO. 718 OF 2019
 AGAINST THE ORDER DATED 6.2.2019        IN E.A. NO.6/2019 IN E.A
     NO.17/2011 IN E.P NO.7/2010 IN O.S.422/1995 OF SUB
                             COURT,KOCHI
PETITIONERS:
    1     JAWAHAR
          AGED 62 YEARS
          S/O. LATE BAHULEYAN, IRINGATHURUTHY, MUNAMBAM
          MURI, KUZHUPPILLY VILLAGE, KOCHI TALUK.
    2     JAYARAM,
          S/O. LATE BAHULEYAN, IRINGATHURUTHY,
          MUNAMBAM MURI, KUZHUPPILLY VILLAGE, KOCHI TALUK,
          BY ADVS.
          DINESH R.SHENOY
          SRI.EBIN MATHEW
          SRI.P.ROHIT PREMANANDAN SHENOY
RESPONDENTS:
    *1    MRS.SUMATHY SHENOY *(EXPIRED)
          W/O. LATE RAMANANDA SHENOY, B 13, NDDB CAMPUS,
          ANAND, GUJARAT -688001.
     2    RAMANAND AJITH SHENOY,
          S/O. LATE RAMANANDA SHENOY, GRENDON C1, BISITT,
          SOUTH HAMPTON.
     3    ASHA RAMESH MIRAKR,
          S/O. LATE RAMANANDA SHENOY, 7424, HUDSON, U.S.A.
     4    ANIL SHENOY,
          S/O. LATE RAMANANDA SHENOY, NDDB CAMPUS, ANAND,
          GUJARAT-688001.
          R2 TO R4 ARE THE LEGAL HEIRS. THIS IS RECORDED AS
          PER ORDER DATED 01.12. 2021 IN OP(C) 718/2019
          BY ADVS.
          G.KRISHNAKUMAR (MALLYA)
          K.B.RAJESH
          S.B.PREMACHANDRA PRABHU
     THIS   OP     (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
12.10.2022, THE COURT ON 21.10.2022 DELIVERED THE FOLLOWING:
 OP(C) NO. 718 OF 2019
                            2



                     C.S DIAS,J.
                 ---------------------------
               O.P (C)No.718 of 2019
                 -----------------------------
          Dated this the 21st October, 2022.

                        JUDGMENT

Aggrieved by Ext.P9 order passed in E.A

No.6/2019 in E.A No.17/2011 in E.P.No.7/2010 in O.S

No.422/1995 of the Court of the Subordinate Judge,

Kochi, the claim petitioners in the execution petition

have filed the original petition. The respondents in

the original petition are the legal representatives of

the original decree holder - late Ramananda Shenoy.

Pending the original petition, the 1st respondent died

and the respondents 2 to 4 have been recorded as her

legal representatives. The petitioners had, at their

risk, deleted the judgment debtor - V.P.Sakeena -

from the party array. Thus, as on today, only the OP(C) NO. 718 OF 2019

children of the original decree holder are on record

as respondents 2 to 4.

2. The skeletal facts, relevant for the

determination of the original petition are: (i) the

petitioners had filed E.A No.17/2011 (Ext.P1) in E.P.

No.7/2010 under Order 21 Rule 99 of the Code of

Civil Procedure (in short "Code") by way of

anticipatory obstruction. They prayed for an order to

declare that the original decree holder was not

entitled to proceed against the execution schedule

property as it belongs to them.

(ii) During the course of trial of the claim

petition, negotiations were held between the

petitioners and the respondents, and the petitioners

filed E.A. No.13/2016 (Ext.P2), to delete the judgment

debtor from the party array of the execution petition.

The 5th respondent supported Ext.P2 application. OP(C) NO. 718 OF 2019

(iii) As the court below was not passing orders on

Ext.P2 application, the petitioners filed

O.P(C)No.2313/2016 before this Court. By judgment

dated 23.9.2016, this Court directed the court below

to pass orders on Ext.P2 application.

(iv) The court below wrongly interpreted the

judgment and went on to decide Exts.P1 and P2

applications simultaneously. The petitioners intended

to examine the witnesses and the Advocate

Commissioner also, but refrained from doing the

same, in the light of the compromise talks. The

petitioners had filed E.A No.35/2016, to re-open their

evidence which was allowed. Again, as the

compromise talks were in progress, the petitioners

did not examine the above witnesses. The 1st

petitioner had to travel outside the State in

connection with his business and he had lost his OP(C) NO. 718 OF 2019

mobile phone. Even though his counsel attempted to

contact him, the same was not successful. Thus, the

petitioners could not let in any evidence.

(v) In the mean time, by Ext.P3 order, the court

below dismissed Ext.P1 application. The petitioners

filed E.A.No.26/2017 (Ext.P4) to recall Ext.P3 order.

(vi) The petitioners also filed O.P(C)No.454/2017

before this Court challenging the order passed in E.A

No.13/2016. This Court referred the parties to

mediation. The disputes between the parties were

settled and the original petition was disposed of as

per Ext.P5 judgment in the light of the mediation

agreement entered between the parties.

(vii) Although the petitioners made a valid

attempt to comply with the terms of the mediation

agreement, due to the demonetization and crash of

real estate prices, they could not fulfill the conditions.

 OP(C) NO. 718 OF 2019


      (viii)   During        the     interregnum,     the

respondents 3 and 4 filed E.A 80/2018 (Ext.P6) to re-

open the execution petition, which was allowed. On

the re-opening of the execution petition,

automatically all the earlier petitions filed by the

petitioners also stand revived. However, out of

abundant caution, the petitioners also filed E.A

No.6/2019 (Ext.P7) to recall Ext.P3 order and to re-

open all the execution applications.

(ix) Ext.P7 application was opposed by the 1st

respondent, contending that as Ext.P3 order has

become final, there is no question of recalling the

order.

(x) By the impugned Ext.P9 order, the court

below dismissed Ext.P7 application. It is only because

of the extreme hasty and irregular procedure

adopted by the court below that the petitioners could OP(C) NO. 718 OF 2019

not let in evidence properly. The depositions of PW1

and PW2 substantiate that the evidence was only

recorded in part in E.A No.34/2014 (Ext.P12), which

was also pending consideration at the time of disposal

of the execution petition. Ext.P9 has been passed on

incorrect and erroneous assumptions and is therefore

unsustainable in law. Hence the original petition.

3. The respondents 2 to 4 have filed a counter

affidavit through the 4th respondent denying the

allegations in the original petition. They have

contended that they are the legal heirs of the

deceased decree holder. The suit was decreed,

directing the defendant/judgment debtor to give

vacant possession of the property to the respondents'

predecessor in interest. The petitioners filed

E.A.No17/2011 under Order 21 Rule 99 of the Code,

to obstruct the delivery of the petition schedule OP(C) NO. 718 OF 2019

property. After the evidence was recorded, an

attempt was made to amicably settle the matter. The

petitioners had filed E.A No.13/2016, to delete the

judgment debtor from the party array. Then, the

petitioners filed O.P(C) No.2313/2016 before this

Court for an expeditious consideration of E.A

Nos.13/2016 and 17/2011. This Court had directed

that the applications to be disposed of within three

weeks. After recording the evidence and hearing of

the parties, the court below, by Ext.P3 order,

dismissed E.A No.17/2011 - the claim petition and

consequentially E.A No.13/2016. The petitioners only

challenged the order passed in EA No.13/2016

before this Court in O.P.(C) No. 454/2017. During the

pendency of the original petition, the parties were

referred for mediation. After negotiations, the parties

arrived at a settlement and executed a memorandum OP(C) NO. 718 OF 2019

of agreement which was accepted by this Court and

Ext.P5 judgment was passed. As per the mediation

agreement, the petitioners were to pay the

respondents an amount of Rs.2,40,00,000/- within six

months, if not, the execution petition would stand

revived and could be proceeded in accordance with

law. On the basis of the said compromise, the

execution petition was kept in abeyance. Since the

petitioners failed to comply with the conditions in the

agreement, the execution petition was re-opened and

the property was ordered to be delivered. It is then

the petitioners filed E.A No.6/2019 to recall the final

order in E.A No.17/2011. E.A No.6/2019 is not

maintainable in law and is an abuse of process of law.

The compromise agreement is binding on all parties.

The intention of the petitioners is to wriggle out of

the compromise. The order passed in E.A No.17/2011 OP(C) NO. 718 OF 2019

is a deemed decree and has to be challenged by

filing an appeal. The original petition may be

dismissed.

4. Heard; Sri. Dinesh.R.Shenoy, the learned

counsel appearing for the petitioners and

Sri.S.B.Premachandra Prabhu, the learned counsel

appearing for the respondents.

5. The question is whether there is any

illegality in Ext.P9 order passed by the court below.

6. Late Ramananda Shenoy ( original decree

holder) had filed E.P. No.7/2010 to execute the decree

passed against Smt.V.P.Sakeena,(judgment debtor) in

O.S No.422/1995 before the court below.

7. During the pendency of the execution petition,

the petitioners filed E.A No.17/2011 (Ext.P1) to

declare that the original decree holder was not

entitled to get any relief in respect of the property OP(C) NO. 718 OF 2019

scheduled in Ext.P1 application, as it belongs to the

petitioners.

8. Later, the petitioners filed E.A No.13/2016

(Ext.P2) to delete the judgment debtor from the party

array in Ext.P1 application for effectuating the

compromise arrived at between the parties.

9. Alleging that the court below was not

passing orders on Ext.P2 application, which was

stalling the compromise talks, the 1st petitioner filed

O.P(C)No.2313/2016 to direct the court below to pass

orders on Ext.P2 application expeditiously. This

Court by its judgment dated 23.9.2016 disposed of

the original petition as follows:

"Before proceeding with the Execution Petition, it is for the court to pass appropriate orders in the claim petition. If any application has been filed by the claim petitioner in the claim petition before proceeding with the claim petition, the court below is expected to pass some orders in the OP(C) NO. 718 OF 2019

application filed by them in their claim petition as well. Keeping the interlocutory applications filed pending and proceeding with the main cases will only cause hardship to the parties. So under such circumstances this court feels that the petition can be disposed of as follows:

Sub Court, Kochi, is directed to expedite disposal of E.A 13/2016 and E.A 17/2011 in E.P.7/2010 in O.S 422/1995 pending before that court as expeditiously as possible, at any rate, within three weeks from the date of receipt of this judgment and till the disposal of that petitions, the court below is directed to keep the execution proceedings in abeyance.

With the above direction and observation, the petition is disposed of.

Registry is directed to communicate this judgment to the concerned court by phone followed by fax immediately."

10. The court below recorded the evidence of the

1st petitioner and his witnesses as Pws1 and 2 and

marked Exts.A1 to A4 on their side. The respondents

examined a witness on their side as RW1 and marked

Exts.B1 to B15.

OP(C) NO. 718 OF 2019

11. By Ext.P3 order dated 16.1.2017, the court

below dismissed Ext.P1 application holding that the

petitioners are not entitled for a declaration that the

original decree holder is not entitled to any relief in

respect of the property scheduled in the claim

petition.

12. The petitioners without challenging Ext.P3

order, only challenged the order passed on Ext.P2

application by filing O.P (C) No.454/2017 before this

Court.

13. During the pendency of the above original

petition, the parties were referred to mediation and

the disputes between them were settled before the

Kerala State Mediation and Conciliation Centre, as

per the memorandum of agreement dated 20.3.2017.

The parties agreed as follows:

OP(C) NO. 718 OF 2019

"Both the parties have agreed to settle the dispute between them under the following terms and conditions:

1. It is agreed that the 1st respondent is an unaffected and unnecessary party in E.A No.17/2011 and can be removed from the party array in E.A No.17/2011 in E. P No.7/2010 in O.S No.422/1995 of the Sub Court, Kochi.

2. The petitioner agrees that respondent Nos.2 to 5 have justifiable right in the subject property involved in E.A No.17/011 and agree that they shall be entitled to a share in the sale proceeds as mentioned below.

3. The petitioner and respondents 2 to 5 have agreed that the subject property can be sold to buyer offering the highest price by the petitioner and his brother Jayaram, who is the 2nd applicant in E.A No.17/2011, within six months from today and the petitioner and his brother shall pay a lump-sum of Rs.2,40,00,000/- (Rupees Two Crores Forty Lakhs only) in consideration of their right, title and interest in the properties. The petitioner and his brother, Mr.Jayaram, shall be entitled to the balance amount.

4. All parties to the compromise shall co-operate for effecting this compromise.

5. In case the subject property could not be sold within six months as mentioned above, the execution OP(C) NO. 718 OF 2019

proceeding shall stand revived and re-opened, to be proceeded with as per law.

6. Hence it is humbly prayed that this Hon'ble Court may be pleased to dispose off the above O.P(C) recording this compromise as part of this Hon'ble Court's judgment in the interest of justice."

14. This Court accepted the memorandum of

agreement and disposed of the original petition by

Ext.P5 judgment dated 23.3.2017, which reads as

follows:

"1. The parties were referred to mediation. The matter was settled in mediation.

2. In the light of the settlement, the original petition is disposed of recording the settlement. Memorandum of Settlement will form part of the judgment. The impugned orders are superseded in terms of the settlement."

15. Undisputedly, the petitioners failed to comply

with the conditions in the memorandum of

agreement. Therefore, the respondents 3 to 5, as

provided in clause (5) of the memorandum of

agreement, extracted above, revived the execution

petition.

OP(C) NO. 718 OF 2019

16. Then the petitioners filed E.A No.6/2019, to

recall Ext.P3 order and to re-open the evidence in the

execution petition, to relegate the parties to the stage

prior to passing of Ext.P3 order. The 1st respondent

objected to the said application.

17. The court below by the impugned Ext.P9

order dismissed the application as follows:

"11. E.A 17/2011 is dismissed on 16.1.2017 itself by a separate speaking judgment. On going through the judgment, it can be seen that the court considered the evidence of the claim petitioners and witnesses, Ext.A1 to A4 and evidence of the decree holder and Ext.P1 to B15. It is a deemed decree as per Order 21 Rule 58(4) of CPC.

12. Here the prayer of the claim petitioners is to recall the order passed in EA 17/2011. As claimed in this petition, E.A 17/2011 and EA 13/2016 are not merely closed since the execution petition is closed. As I mentioned earlier, the decree is passed in E.A 17/2011 after full fledged trial. There is no provision in CPC to recall the order passed after adjudication of the claim under Order 21 Rule 58. It is seen that the order passed in EA 17/2011 has not been challenged, hence it became final. So the prayer in this petition cannot be allowed.

13. Point No.ii: In the result, the E.A is dismissed. No

cost."

OP(C) NO. 718 OF 2019

18. Ext.P1 application was filed under Order 21

Rule 99 of the Code. The court below, after a full

fledged trial, dismissed the application by Ext.P3

order. An order passed under Order 21, Rules 98 and

100 of the Code, is to be treated as a decree as

provided under Order 21 Rule 103 of the Code.

19. Admittedly, the petitioners have not

challenged Ext.P3 order. Instead, they chose to only

challenge the order passed in Ext.P2 application by

filing O.P(C) No.454/2017 before this Court. In the

said proceeding, they settled the dispute with the

respondent as per the memorandum of agreement

appended to Ext.P5 judgment, wherein the

petitioners undertook to pay off the decree debt

within six months from 20.3.2017, failing which the

execution petition will stand revived and be

proceeded with.

OP(C) NO. 718 OF 2019

20. The petitioners failed to adhere to their

undertaking and the respondents have got the

execution petition revived. The petitioners' claim in

respect of the claim schedule property has come to an

end by Ext.P5 judgment and Ext.P3 order attaining

finality. It is too late in the day for the petitioners to

aspire to turn the clock back and start the concluded

proceeding all over again.

In the above conspectus, I am of the definite

view that the petitioners are estopped from re-

agitating the concluded matters. There is no error in

Ext.P9 order warranting interference by this Court

under Article 227 of the Constitution of India.

The Original Petition is devoid of any merits and

is hence dismissed.

ma/17.10.2022                     Sd/-.S.DIAS, JUDGE
 OP(C) NO. 718 OF 2019


                 APPENDIX OF OP(C) 718/2019

PETITIONER EXHIBITS
EXHIBIT P1          TRUE PHOTOCOPY OF EA.NO.17/2011 IN

EP.NO.7/2010 IN OS. NO.422/1995, SUB COURT, KOCHI.

EXHIBIT P2 TRUE PHOTOCOPY OF EA.NO.13/2016 IN EP.NO.7/2010 IN OS. NO.422/1995, SUB COURT, KOCHI.

EXHIBIT P3 TRUE PHOTOCOPY OF ORDER DATED 16/1/2017 IN EA.NO.17/2011 IN EP.NO.7/2010 IN OS. NO.422/1995, SUB COURT, KOCHI.

EXHIBIT P4 TRUE PHOTOCOPY OF EA.NO.26/2017 IN EA.NO.17/2011 EP.NO.7/2010 IN OS.

NO.422/1995, SUB COURT, KOCHI.

EXHIBIT P5 TRUE PHOTOCOPY OF JUDGMENT DATED 23/3/2017 IN OPC NO.454/2017, HIGH COURT OF KERALA, EXHIBIT P6 TRUE PHOTOCOPY OF EA NO.80/2018 IN EP NO.7/2010 IN OS NO.422/1995, SUB COURT, KOCHI.

EXHIBIT P7 TRUE PHOTOCOPY OF EA.NO.6/2019 IN EA NO.17/2011 IN EP NO.7/2010 IN OS NO.422/1995, SUB COURT , KOCHI.

EXHIBIT P8 TRUE PHOTOCOPY OF OBJECTION DATED 16.1.2019 FILED BY THE RESPONDENTS IN EA.6/2019 IN EA NO.17/2011 IN EP.NO.7/2010 IN OS NO.422/1995, SUB COURT, KOCHI.

EXHIBIT P9 TRUE PHOTOCOPY OF ORDER DATED 6.2.2019 IN EA NO.6/2019 IN EA NO.17/2011 IN EP NO.7/2010 IN OS NO. 422/1995, SUB COURT, KOCHI.

EXT.P10: TRUE COPY OF THE CERTIFIED COPY OF PW1 IN E.A NO.34/2014 IN E.A. 17/2011 IN E.P. NO.7/2010 IN O.S. 422/1995, SUB COURT, KOCHI EXT.P11:TRUE PHOTOCOPY OF PW2 IN E.A NO.34/2014 IN E.A. NO.17/2011 IN E.P. 7/2010 IN O.S. 422/1995, SUB COURT, KOCHI EXT.P13: TRUE PHOTOCOPY OF E.A. NO.35/2016 IN E.P. 17/2010 IN O.S. NO.422/1995 SUB COURT, KOCHI