Kerala High Court
Thomas vs Baby on 25 February, 2025
1
OPC 400/25
2025:KER:19071
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946
OP(C) NO. 400 OF 2025
EP NO.155 OF 2016 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT
/COMMERCIAL COURT,IRINJALAKUDA
PETITIONER/S:
1 THOMAS, AGED 57 YEARS
S/O IDAKKUZHIYIL MATHEW, MONODI DESOM, VELLIKULANGARA,
THRISSUR DISTRICT, PIN - 680699
2 JINI, AGED 24 YEARS
D/O IDAKKUZHIYIL MATHEW, MONODI DESOM, VELLIKULANGARA,
THRISSUR, PIN - 680699
BY ADVS. MANU NAIR G.
BHARATH MURALI
SIDHARTH MURALI
RESPONDENT/S:
BABY, AGED 75 YEARS
S/O POROTHUKKARAN OUSEPH, KURIYACHIRA DESOM, CHIYYARAM
VILLAGE, THRISSUR DISTRICT, PIN - 680026
BY ADVS.
K.R.ARUN KRISHNAN
DEEPA K.RADHAKRISHNAN(K/001131/2010)
SANAL C.S(K/1555/2020)
VISHAK K.V.(K/2921/2023)
ANU T.H.(K/000821/2025)
RENJITH K.R.(K/002782/2023)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2
OPC 400/25
2025:KER:19071
JUDGMENT
(Dated this the 25th day of February 2025)
Judgment debtors 2 and 3 in E.P. No.155 of 2016 in
O.S.No.782 of 2012 are the petitioners herein. O.S.No.782 of
2012 is filed by the respondent herein as the plaintiff. The suit
was decreed on 24.06.2016, allowing the plaintiff to realise an
amount of Rs.3,35,440/- with future interest at 6% from the date
of the suit till realisation.
2. The suit was initially filed against one Annie Thomas.
The legal heirs of the original defendant filed R.F.A.No.90 of
2019 before this court, and on 16.1.2025, the appeal was
dismissed. In the meanwhile, the decree was put for execution.
In execution, the property was brought for sale, and an auction
was conducted on 23.5.2017. The judgment debtors filed E.A.
No.542 of 2017, and on 09.10.2019, the application was
2025:KER:19071
dismissed, holding that it is barred by limitation. The dismissal
order was challenged before this court in F.A.O. No.170 of 2019.
A Division Bench of this court dismissed F.A.O. on 29.11.2021.
3. As per the order in E.A. 380 of 2018 dated 15.7.2022, the
execution court deputed an Amin to effect delivery. The
respondent/decree holder thereafter filed E.A. Nos.108 of 2025
and 109 of 2025 to break open the house situated in the decree
schedule property and for police aid to effect delivery,
respectively. The petitioners filed objections to both the EAs, and
he also filed E.A. No.110 of 2025 for the appointment of an
Advocate Commissioner. The decree-holder filed objections to
the said application. The execution court considered the 3
applications together and, by a common order dated 05.01.2025,
allowed I.A.Nos.108 and 109 of 2025, and I.A.No.110 of 2025
2025:KER:19071
was dismissed. The petitioner has filed this O.P., challenging the
common order.
4. The execution court found that the petitioners herein, as
legal heirs of the original defendant and Judgment debtor, filed
the application before the execution court to set aside the sale,
vide E.A. No.542 of 2017, which was dismissed by the execution
court and was confirmed by this court. As per the averments in
the present E.A., (E.A.No.110 of 2025), the petitioner has put
forward an independent claim that he is a third party to the
proceeding. The execution court rightly found that the present
petitioner cannot take such contention as he had already objected
to the delivery as a legal heir of the original defendant, and
whatever right the original defendant has can only be taken by the
legal heirs after impleadment. Once the execution court finds
that there is reason to set aside the sale, which has been confirmed
2025:KER:19071
as early as in 2017, and the challenge made is repelled by this
court, the present petitioners cannot take a different stand. The
court below is fully justified in dismissing the E.A.Nos.108 and
109 of 2025 and allowing E.A.No.110 of 2025 filed for breaking
open the decree schedule property with the aid of police.
5. The apex court in Estralla Rubber v. Dass Estate (P)
Ltd. [(2001) 8 SCC 97] held as follows:
"6. The scope and ambit of exercise of power and jurisdiction by
a High Court under Article 227 of the Constitution of India is examined
and explained in a number of decisions of this Court. The exercise of
power under this article involves a duty on the High Court to keep
inferior courts and tribunals within the bounds of their authority and to
see that they do the duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited prerogative to correct
all kinds of hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise of this power
and interfering with the orders of the courts or tribunals is restricted to
cases of serious dereliction of duty and flagrant violation of fundamental
principles of law or justice, where if the High Court does not interfere, a
grave injustice remains uncorrected. It is also well settled that the High
Court while acting under this Article cannot exercise its power as an
appellate court or substitute its own judgment in place of that of the OPC
495/2021 subordinate court to correct an error, which is not apparent on
the face of the record. The High Court can set aside or ignore the findings
2025:KER:19071
of facts of an inferior court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable person can
possibly come to such a conclusion, which the court or tribunal has come
to."
Therefore, no interference is warranted with Ext.P11,
common order dated 5.1.2025 in E.A.Nos.108, 109 and 110 of
2025 and hence, this O.P.(C) stands dismissed.
Sd/-
BASANT BALAJI, JUDGE
dl/
2025:KER:19071
APPENDIX OF OP(C) 400/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT IN O.S NO. 782 / 2012
ON THE FILE OF SUBORDINATE JUDGE, IRINJALAKUDA
DATED 24/06/2016
Exhibit P2 TRUE COPY OF THE DECREE PASSED IN O.S NO. 782 /
2012 ON THE FILE OF SUBORDINATE JUDGE,
IRINJALAKUDA DATED 24/06/2016
Exhibit P3 TRUE COPY OF THE EXECUTION PETITION NO. 155 /
2016 DATED 19/08/2016
Exhibit P4 TRUE COPY OF THE ORDER PASSED IN E.A NO. 380/
DATED 15/07/2022
Exhibit P5 TRUE COPY OF E.A NO. 108 OF 2025 IN E.P. NO. 155
/ 2016 DATED 03/02/2025
Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONERS IN E.A NO. 108 OF 2025 IN E.P. NO.
155 / 2016 DATED 04/02/2025
Exhibit P7 TRUE COPY OF E.A NO. 109 OF 2025 IN E.P. NO. 155
/ 2016 DATED 03/02/2025
Exhibit P8 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONERS IN E.A NO. 108 OF 2025 IN E.P. NO.
155 / 2016 DATED 04/02/2025
Exhibit P9 TRUE COPY OF E.A NO. 110 OF 2025 IN E.P. NO. 155
/ 2016 DATED 05/02/2025
Exhibit P10 TRUE COPY OF THE OBJECTION FILED BY THE
/ 2016 DATED 05/02/2025
Exhibit P11 TRUE COPY OF THE COMMON ORDER PASSED IN E.A NO.
OF 2025 IN E.P. NO. 155 OF 2016 IN O.S NO 782 OF
2012 DATED 05/02/2025 ON THE FILE OF THE
SUBORDINATE JUDGE, IRINJALAKUDA
Corrected
