Kerala High Court
Varghese vs Elsy Jose on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
OP(C) NO. 1782 OF 2014
OS 386/2011 OF MUNSIF COURT, KANJIRAPPALLY
PETITIONER:
VARGHESE
S/O.DEVASYA, MATHIYATHU HOUSE, KULAPPARAM IST MILE
BHAGOM, KOOVAPPALLI VILLAGE, KANJIRAPPALLY TALUK,
PALAMBRA P.O.
BY ADVS.
SRI.E.N.VISHNU NAMBOODIRI
SRI.M.K.SASEENDRAN (MELEL)
SRI.VINOD RAJKUMAR
RESPONDENTS:
1 ELSY JOSE
W/O.JOSE, ETTUVELIL HOUSE, KUNNUMBHAGOM KARA,
CHIRAKKADAVU VILLAGE, CHIRAKADAVU P.O.- 686 520.
2 GRACY JOSEPH
PONGANPARAYIL PUTHENPARAMBIL, PUTHUPPALLY VILLAGE,
PUTHUPPALLY P.O, KOTTAYAM TALUK - 686 011.
3 MARY VARGHESE
W/O.VARGHESE, PONGANPARAYIL (MATHIYATHU HOUSE)
PUTHUPPALLY VILLAGE, PUTHUPPALLY P.O
KOTTAYAM TALUK - 686 011.
BY ADVS.
SRI.LIJI.J.VADAKEDOM
SMT.MINI.V.A.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.01.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1782 OF 2014 2
Dated this the 17th day of January, 2023
JUDGMENT
The original petition is filed challenging Ext.P6
order passed in I.A. No.368/2014 in O.S. No.386/2011 by
the Court of the Munsiff, Kanjirappallay.
2. The facts leading to Ext.P6 order, in a narrow
compass, are: the respondents 1 and 2 had filed the suit
against the third respondent for a decree of partition.
Ext.P1 preliminary decree was passed. The Advocate
Commissioner has erroneously included one cent of the
petitioner's property in Ext.P2 report and plan.
Therefore, the petitioner filed Ext.P3 suit before the court
below, against the defendants, for a decree of injunction
to restrain them from demolishing the buildings situated
in his property. In the meantime, the petitioner also filed
I.A. No. 368/2014 (Ext.P5) under Order 21 Rule 59(b) of
the Code of Civil Procedure (in short 'Code') to stay the
proposed sale. The court below, without adverting to the
legal position, by the impugned Ext.P6 order, has
dismissed Ext.P5 application. Ext.P6 is erroneous and
wrong. Hence, the original petition.
3. Heard; Sri.E.N. Vishnu Namboodiri, the learned
counsel appearing for the petitioner and Sri.Liji J.
Vadakedom, the learned counsel appearing for the
respondents 1 and 2 and Smt.V.A.Mini, the learned
counsel appearing for the 3rd respondent.
4. The question is, is there any illegality in Ext.P6
order.
5. On an appreciation of the pleadings and materials
on record, it is seen that in the suit filed by the
respondents 1 and 2, Ext.P1 preliminary decree has been
passed against the 3rd respondent, who is none other than
the wife of the petitioner. There is nothing on record to
establish that Ext.P1 has been challenged.
6. Alleging that the petitioner's one cent of land has
been included in Ext.P2 report, the petitioner has filed an
independent suit before the court below, for a decree to
restrain the respondents 1 and 2 from demolishing his
building, while passing the final decree. Thereafter, the
petitioner filed Ext.P5 application to stay the final decree
proceedings. The court below, by the impugned Ext.P6
order, dismissed Ext.P5 application holding that the
petitioner's right is to file an independent suit.
7. I find the course adopted by the court below to be
perfectly legal and justifiable.
8. A Division Bench of this Court in Santha v. Vasu
[1995 KHC 289] has categorically held that there is no
impediment or prohibition as contemplated under Section
41(b) of the Specific Relief Act, in a person prosecuting a
fresh suit in the same court to restrain the execution of
the decree.
9. In the case at hand, undisputedly, the petitioner
has already filed a suit before the same court. Therefore,
it is upto him to workout his remedies as contemplated
under law for the redressal of his grievance.
I do find any error in Ext.P6 order warranting
interference by this Court under Article 227 of the
Constitution of India. The original petition fails and is
hence dismissed.
Sd/-
C.S.DIAS, JUDGE
rmm17/01/2023
APPENDIX OF OP(C) 1782/2014
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PRELIMINARY DECREE IN OS
386/2011 OF THE MUNSIFFS COURT,
KANJIRAPPALLY.
EXHIBIT P2 TRUE COPY OF THE SURVEY REPORT AND THE
SURVEY PLAN DIVIDING THE PROPERTY INTO 3.
EXHIBIT P3 TRUE COPY OF THE PLAINT IN THE UNNUMBERED
ORIGINAL SUIT BEFORE THE MUNSIFFS COURT,
KANJIRAPPALLY FILED BY THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE ORDER IN IA 362/2014 OF
THE MUNSIFF COURT, KANJIRAPPALLY.
EXHIBIT P5 TRUE COPY OF IA 368/2014 IN OS 386/2011
OF THE MUNSIFF COURT, KANJIRAPPALLY.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 4.3.14 OF
THE MUNSIFF COURT, KANJIRAPPALLY IN IA
368/2014 IN OS 386/2011.
