Kerala High Court
Priya S. Babu vs Sarojini on 6 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
OP(C) NO. 2559 OF 2022
OS 865/1989 OF PRINCIPAL MUNSIFF,ALAPPUZHA
PETITIONERS:
1 PRIYA S. BABU
AGED 53 YEARS
W/O SURESH BABU, NARAYANI VILLA,
PUNNAPRA VILLAGE, PARAVUR MURI,
AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT,
PIN - 688004
2 SOORAJ S. BABU
AGED 30 YEARS
S/O SURESH BABU, NARAYANI VILLA,
PUNNAPRA VILLAGE, PARAVUR MURI,
AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT,
PIN - 688004
3 SREERAJ S. BABU
AGED 20 YEARS
S/O SURESH BABU, NARAYANI VILLA,
PUNNAPRA VILLAGE, PARAVUR MURI,
AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT,
PIN - 688004
BY ADVS. V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
NITHEESH.M
SUKANYA S.
RESPONDENTS:
1 SAROJINI
AGED 65 YEARS
D/O PADMAKSHI,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU PUTHENPURAYIL,
PUNNAPRA VILLAGE, PARAVUR MURI,
O.P.(C)No.2559/2022
-:2:-
AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT,
PIN - 688004
2 SUPRABHA
AGED 30 YEARS
D/O PADMAKSHI,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU PUTHENPURAYIL,
PUNNAPRA VILLAGE, PARAVUR MURI,
AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT,
PIN - 688004
3 AMBIKA
AGED 28 YEARS
D/O PADMAKSHI,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU PUTHENPURAYIL,
PUNNAPRA VILLAGE, PARAVUR MURI,
AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT,
PIN - 688004
4 LAKSHMIKUTTY
AGED 82 YEARS
D/O. ANANTHA,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU, PUNNAPRA VILLAGE,
PARAVUR MURI, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688004
5 UNNIKRISHNAN
AGED 60 YEARS
S/O LAKSHMIKUTTY,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU, PUNNAPRA VILLAGE,
PARAVUR MURI, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688004
6 VALLY
AGED 54 YEARS
D/O. LAKSHMIKUTTY,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU, PUNNAPRA VILLAGE,
PARAVUR MURI, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688004
7 REMA
AGED 44 YEARS
O.P.(C)No.2559/2022
-:3:-
D/O. LAKSHMIKUTTY,
NADUVILE MUNDUKATTU HOUSE,
KONKINIPARAMBU, PUNNAPRA VILLAGE,
PARAVUR MURI, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688004
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.2559/2022
-:4:-
Dated this the 6th day of January,2023
JUDGMENT
Confronted with Ext P12 order passed in
E.A.No.201/2022 in E.A.No.135/2019 in E.P.No.15/2018
in O.S.No.865/1989 by the Court of the Principal
Munsiff, Alappuzha, the petitioners 2 to 4 in the above
application have filed the original petition. The
respondents are the counter petitioners 2 to 4 and 6 to
9 before the court below.
2. The concise case of the petitioners, leading to
Ext P12 order, is that:
(i) The predecessor in interest of the petitioners ―
late Suresh Babu ― had filed E.A.No.135/2019
(Ext P1) under Section 94 read with Order 21
Rules 97 and 98 of the Code of Civil
Procedure,1908 (in short, 'Code') against the
respondents.
(ii) Suresh Babu died during the pendency of the
application, and the petitioners got themselves
O.P.(C)No.2559/2022
impleaded as additional petitioners 2 to 4. Even
though the counter petitioners 1 and 5 have
died, they are formally arrayed in the
application. The counter petitioners 1 to 3 have
resisted Ext P1 application by filing Ext P2
objection.
(iii) Ext P3 decree sought to be executed is an
ex-parte decree. Ext C4(a) survey plan forms a
part of the decree.
(iv) The petitioners and Suresh Babu were not
parties in the suit. Suresh Babu had purchased
an extent of 2.58 ares of property, as per Ext P4
sale deed, from the counter petitioners 4 to 6.
The said property is described in Ext C4 (a)
plan and is scheduled in the claim petition.
(v) The petitioners have filed E.A.No.121/2022 (Ext
P8) to hold a full-fledged trial as stipulated
under the Code. The respondents 1 to 3 have
resisted the application by filing Ext P9 written
objection. Then, the petitioners filed
E.A.No.201/2022 (Ext P10), to appoint an
O.P.(C)No.2559/2022
Advocate Commissioner, to obtain a plan, with
the assistance of a Surveyor. The said
application was also opposed by the
respondents 1 to 3 through Ext P11 counter
statement. The court below, by the impugned
Ext P12 order, has dismissed Ext P10
application.
(vi) Ext P12 is patently erroneous, arbitrary and
illegal. Hence, the original petition.
3. Heard; Sri. V.N. Sankarjee, the learned
Counsel appearing for the petitioners and Sri.
K.S.Hariharaputhran, the learned Counsel appearing
for the respondents.
4. Sri. V.N. Sankarjee reiterated the contentions
in the original petition and contended that the court
below has gone wrong in dismissing Ext P10. The
petitioners' right to establish their case has been
peremptorily rejected by the impugned Ext P12 order,
O.P.(C)No.2559/2022
which warrants to be interfered with by this Court.
5. Sri. K.S.Hariharaputhran vehemently opposed
the original petition and argued that the petitioners are
the successors in interest of Suresh Babu, who had
filed Ext P1 obstruction application. Suresh Babu is a
transferee pendent lite. Therefore, Ext P1 application
falls within the foul of Order 21 Rule 102 of the Code.
When Ext P1 application by itself is not maintainable,
there is no question of appointing an Advocate
Commissioner. Furthermore, the contention that
Suresh Babu did not receive notice is untenable, in
view of the law laid down by the Hon'ble Supreme
Court in Usha Sinha v. Dina Ram & Ors. [AIR 2008
SC 1997]. The court below has rightly rejected Ext P10
application. There is no merit in the original petition,
which entails to be dismissed at the threshold.
6. The short point is, is there any illegality in
O.P.(C)No.2559/2022
Ext P12 order?.
7. The court below, by Ext P12 order, has held
thus:
"9. In this case, claim petitioner purchased the
property during the pendency of the suit. So in other
words, he is a transferee pendetelite. All the prayers asked
for by the petitioner is ascertained in Ext.C4(a) plan.
There is no dispute that the properties are one and the
same. Claim petitioner is a transferee pendentelite. So he
is bound by the decree. Commission application cannot
be allowed on mere asking. So the present application is
filed with dubious intention to drag the proceedings.
Hence the petition is dismissed."
[sic]
8. Undisputedly, the petitioners are claiming a
right over the property through Suresh Babu.
9. It is on record that Ext P4 sale deed was
executed during the pendency of the suit.
10. Order 21 Rule 102 of the Code
unambiguously stipulates that Rules 98 and 100 of
Order 21 of the Code are not applicable to a transferee
pendent lite.
O.P.(C)No.2559/2022
In the above background, when Ext P1 application
by itself is found to be not maintainable, the court
below has rightly held that there is no necessity to
appoint an Advocate Commissioner for the purpose of
elucidating matters for the determination of an
unsustainable application. Ext P10 order does not
suffer from any illegality or error warranting
interference by this Court under Article 227 of the
Constitution of India. The original petition is devoid of
any merits and is consequentially dismissed at the
threshold.
Sd/-
C.S.DIAS,JUDGE
DST/06.01.23 //True copy//
P.A.To Judge
O.P.(C)No.2559/2022
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED
8.4.2019, E.A. NO.135/2019 IN E.P. NO.
15/2019 IN O.S. NO.865/1989 ON THE FILE OF
THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA
EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 3.3.2022
IN E.A. NO. 135/2019 IN E.P. NO. 15/2019 IN
O.S. NO.865/1989 PENDING BEFORE THE
PRINCIPAL MUNSIFF COURT, ALAPPUZHA
EXHIBIT P3 TRUE COPY OF THE DECREE DATED 26.3.2008
TOGETHER WITH EXHIBIT C4 (A) PLAN IN O.S.
NO. 865/1989 ON THE FILE OF PRINCIPAL
MUNSIFF COURT, ALAPPUZHA
EXHIBIT P4 TRUE COPY OF THE SALE DEED DATED 18.2.2006
BEARING NO. 225/2006 ON THE FILE OF S.R.O.,
ALAPPUZHA
EXHIBIT P5 TRUE COPY OF THE PARTITION DEED DATED
13.1.2000 HEARING NO. 216/2000 ON THE FILE
OF THE S.R.O., ALAPPUZHA
EXHIBIT P6 TRUE COPY OF THE TAX RECEIPT DATED
13.9.2006 ISSUED IN FAVOUR OF THE COUNTER
PETITIONERS 4 TO 6 IN THANDAPER ACCOUNT NO.
3987 OF PUNNAPRA VILLAGE
EXHIBIT P7 TRUE COPY OF THE PARTITION DEED NO.
395/1968 DATED 19.2.1968 ON THE FILE OF THE
S.R.O., ALAPPUZHA
EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED
29.3.2022 E.A. NO.121/2022 IN E.A.
NO.135/2019 IN E.P. NO. 15/2018 IN O.S. NO.
865/1989 ON THE FILE OF THE MUNSIFF'S
COURT, ALAPPUZHA
EXHIBIT P9 TRUE COPY OF THE OBJECTION DATED 17.9.2022
FILED BY RESPONDENTS 1 TO 3 IN E.A.
NO.121/2022 IN E.A. NO.135/2019 IN
E.P.NO.15/2018 IN O.S. NO.865/1989 ON THE
FILE OF THE MUNSIFF'S' COURT, ALAPPUZHA
O.P.(C)No.2559/2022
EXHIBIT P10 TRUE COPY OF THE COMMISSION APPLICATION
DATED 6.8.2022 IN E.A. NO.201/2022 IN E.A.
NO.135/2019 IN E.P. NO. 15/2018 IN O.S. NO.
865/1989 ON THE FILE OF THE MUNSIFF'S
COURT, ALAPPUZHA
EXHIBIT P11 TRUE COPY OF THE OBJECTION DATED 26.10.2022
FILED BY RESPONDENTS 1 TO 3 IN E.A.
NO.201/2022 IN E.A. NO.135/2019 IN E.P. NO.
15/2018 IN O.S. NO. 865/1989 ON THE FILE OF
THE MUNSIFF'S COURT, ALAPPUZHA
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 4.11.2022 IN
E.A. NO. 201/2022 IN E.A. NO.135/2019 IN
E.P. NO. 15/2018 IN O.S. NO. 865/1989 ON
THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA
EXHIBIT P13 TRUE COPY OF THE PLAINT DATED 3.10.1989, AS
AMENDED IN O.S. NO. 865/1989 ON THE FILE OF
THE MUNSIFF'S COURT, ALAPPUZHA
RESPONDENT'S EXHIBIT: NIL
