Kerala High Court
Thomas K. Mathew vs Johny Thomas on 7 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
OP(C) NO. 1604 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 43/2016 OF SUB COURT, PERUMBAVOOR
AND
AGAINST THE ORDER/JUDGMENT IN EP 16/2019 OF SUB COURT, PERUMBAVOOR
PETITIONER/PETITIONER IN EA/JUDGMENT DEBTOR IN EP:
THOMAS K. MATHEW
AGED 52 YEARS
S/O. KOTTANATHU VEETTIL MATHAI,
MATTAPPALLI PURAYIDATHIL, EZHIPRAM KARA,
AYIKARANADU NORTH VILLAGE, KADAYIRIPPU P O,
ERNAKULAM DISTRICT, PIN - 682311
BY ADVS.
SHIJU VARGHESE
SACHU THOMAS
RESPONDENT/RESPONDENT IN EA/DECREE HOLDER IN EP:
JOHNY THOMAS
S/O. THOMAS, AGED 53,
AYIKKARAKKUDY HOUSE,
VENGOLA KARA, ARAKKAPPADY VILLAGE,
KADAYIRIPPU P O,
ERNAKULAM DISTRICT, PIN - 682311
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1604 OF 2023
2
JUDGMENT
The original petition is filed assailing Ext.P7 order
passed by the court of the Subordinate Judge,
Perumbavoor (court below) in E.A. No. 149/2023 in E.P
No. 16/2019 in O.S. 43/2016.
2. The brief antecedent facts for the
determination of original petition are:
(i) The petitioner is the judgment debtor in E.P
No. 16/2019, which is filed by the respondent to
execute the decree passed in O.S. No. 43/2016 of the
court below.
(ii) The respondent had filed a suit against the
petitioner, for decree for recovery of money. The suit
was decreed by Ext. P1 judgment and Ext.P2 decree.
(iii) The respondent filed Ext.P3 execution petition
to execute Ext.P2 decree.
(iv) The petitioner preferred R.F.A No. 287/2019
before this Court, which was dismissed by Ext.P4
OP(C) NO. 1604 OF 2023
judgment.
(v) After dismissal of the appeal, the respondent
took further steps to execute the decree through the
pending execution petition.
(vi) The petitioner filed E.A. No. 149/2023
(Ext.P5), objecting to the continuation of the execution
petition on the ground that the respondent can only
execute the decree passed in Ext.P4 judgment because
it has merged with Ext.P2 decree. The application was
resisted by the respondent through Ext.P6 objection.
(vii) The court below, by impugned Ext.P7 order,
rejected Ext.P5 application.
(viii) This Court, in Exts.P8 and P9 judgments, has
categorically held that when a decree is affirmed/
modified/reversed by the appellate court, there is a
merger of the original decree with the appellate decree.
Hence, only the appellate decree is executable.
(ix) Therefore, Ext.P7 order passed by the court
below is patently wrong and untenable, and is liable to
OP(C) NO. 1604 OF 2023
be set aside.
3. Heard; Sri. Shiju Vargheese, the learned
counsel appearing for the petitioner on admission.
4. The point is whether there is any illegality in
Ext.P7 order.
5. Indisputably the respondent had laid Ext.P2
decree to execution by filing E.P. No. 16/2019 before
the court below, prior to the filing of R.F.A. No.
287/2019 before this Court. Although, the appeal was
admitted by this Court, the same was subsequently
dismissed by this Court, by Ext.P4 judgment, confirming
Ext.P1 judgment and Ext.P2 decree. Admittedly, this
Court has not modified/ reversed the findings of the
court below. Hence, immediately after the dismissal of
the appeal, the court below resurrected and continued
with the execution petition.
6. Immediately, the petitioner preferred Ext.P5
objection contending that, the execution petition is not
maintainable because the petitioner can only execute
OP(C) NO. 1604 OF 2023
the modified decree passed in Ext.P4 judgment. The
court below rejected the application on the ground that
the petitioner's intention is only to procrastinate the
execution petition.
7. I completely endorse the findings of the court
below in this regard. Things would have different and
Exts.P8 and P9 would have had application, if the
petitioner had filed the execution petition after Ext.P4
judgment. I do not find any meaning or significance in
the respondent withdrawing the present execution
petition and filing a fresh execution petition on the
basis of the decree passed pursuant to Ext.P4
judgment, particularly when this Court has only
confirmed Ext.P2 decree, which is already laid to
execution. It is trite, procedural law is handsmaid of
justice. At any rate, hyper technicality cannot defeat
substantial justice.
8. The supervisory jurisdiction of this Court
under Article 227 of the Constitution of India is to be
OP(C) NO. 1604 OF 2023
sparingly exercised to keep the courts of the District
Judiciary within their bounds of authority.
9. I do not find any error in Ext.P7 order
warranting interference by this Court. The sole
intention of the petitioner is to protract the culmination
of the execution proceedings, which is a sheer abuse of
the process of law.
The original petition is meritless and is hence,
consequently dismissed.
Sd/-
C.S.DIAS,
JUDGE
LU
OP(C) NO. 1604 OF 2023
APPENDIX OF OP(C) 1604/2023
PETITIONER EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN OS
NO.43/2016 OF THE HON'BLE SUB COURT,
PERUMBAVOOR DATED 31.01.2019
EXHIBIT P2 TRUE COPY OF THE DECREE IN OS NO.43/2016
OF THE HON'BLE SUB COURT, PERUMBAVOOR
DATED 31.01.2019
EXHIBIT P3 TRUE COPY OF EP NO.16/2019 OF THE
HON'BLE SUB COURT, PERUMBAVOOR DATED
09.04.2019
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN RFA
NO.287/2019 OF THE HON'BLE HIGH COURT OF
KERALA DATED 30.3.2023
EXHIBIT P5 TRUE COPY OF EA NO. 149/2023 IN EP NO.
16/2019 OF THE HON'BLE SUB COURT,
PERUMBAVOOR DATED 20.07.2023
EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT/JUDGMENT DEBTOR TO THE EA NO.
149/2023 OF THE HON'BLE SUB COURT,
PERUMBAVOOR DATED 23.7.2023
EXHIBIT P7 TRUE COPY OF THE ORDER IN EA NO.149/2023
OF THE HON'BLE SUB COURT, PERUMBAVOOR
DATED 23.7.2023
EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THE HON'BLE
HIGH COURT IN 2009 (1) KHC 28 (PHILIP
ANCHERY VS. REV. FR. KC ZACHARIA)
EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THE HON'BLE
HIGH COURT IN 2017 (2) KHC 594 (MATHAI
AND OTHERS V. THOMAS AND OTHERS)
// True Copy // PA To Judge
