High Court of KeralaSingle Judge2023-10-27Original Petition disposed of with directions t...

Alavi Haji v. Muhammed Haneefa and Others

Case / Petition Number:OP(C) NO.433 OF 2020

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2023-10-27
Court Decision / Holding: The High Court held that I.A.833/2018 seeking correction of the Final Decree ought to have been allowed. Ext.P4 was set aside, and the matter remitted to the trial court to consider and pass orders in I.A.833/2018 in accordance with law and with the observations in this judgment. If the petitioner’s purchase of shares is undisputed and proved by documents, there would be no prejudice to other parties in modifying the decree accordingly. The judgment also clarifies a correction: the reference to O.S.252/2018 is corrected to O.S.146/1999 as per post-judgment orders. The Original Petition is disposed of with these directions.
Final Disposition: Original Petition disposed of with directions to remand I.A.833/2018 to the trial court for consideration in accordance with law and this judgment.

Parties to the Case

Appellants / Petitioners

ALAVI HAJI

Respondents

MUHAMMED HANEEFA
MOIDEENKUTTY
NASAR
IBRAHIM
KADEEJA (D/O MOIDEEN HAJI)
KADEEJA (D/O AHAMMEDKUTTY)
SHAHUL HAMEED
SUHARA
UMMUSALMA
MARIYAMU
MUHAMMED
RAMLA
SIHAB
JIHAD
IPPLIKKAT KUNHIKADIYA
KOYAMU
KUNHEERUMMA (DIED)
IYYAYAKUTTY (D/O MOIDEENKUTTY)
PATHUMMAKUTTY (D/O MOIDEENKUTTY)
MARIYAKUTTY (D/O MOHAMMED HAJI)
ABDUL WAHAB P (LR)
ABDUL LATHEEF P (LR)
ABDUL MAJEED (LR)
ABDUL HAMEED (LR)
ABDUL KAREEM (LR)
IYYATHUMMU P (LR)
KADEEJA P (LR)

Legal Representation & Advocates

Counsels for Petitioners

• P.BABU KUMAR
• SRI.P.YADHU KUMAR
• SRI.VISHNU BABU

Case Synopsis & Summary

Alavi Haji, the petitioner, is the 3rd respondent in Final Decree proceedings FDIA 1788/2001 in O.S. No.252/2018 before the Munsiff, Parappanangadi. Before the preliminary decree was passed, the shares of respondents 6 and 7 were purchased by the petitioner, a fact not noticed while passing the preliminary decree or in the final decree. Consequently, the final decree allotted those shares to respondents 6 and 7 instead of transferring them to the petitioner, despite documentary title proof. The petitioner moved I.A.833/2018 under Section 152 CPC seeking correction of the final decree to reflect these transfers. The Munsiff dismissed Ext.P4 on 11.12.2019. The High Court notes that the petitioner produced title deeds evidencing the purchase of the shares and that the transfers among defendants should be accounted for at the time of final allotment. The petitioner relied on a Supreme Court decision, Niyamat Ali - Molla v. Sonargon Housing Co operative Society Ltd. & Others (AIR 2008 SC 225), to support the corrective relief. The court proceeded notwithstanding non-appearance of respondents, and held that the petition should have been allowed. It set aside Ext.P4, remitting I.A.833/2018 to the trial court to pass orders in accordance with law and this judgment, concluding that if the purchase of the shares by the petitioner is undisputed, correcting the decree would not prejudice other parties. The judgment also notes a postscript correction regarding the reference to O.S.252/2018 (later corrected to O.S.146/1999).

Provisions of Law Cited

Code of Civil Procedure, Section 152

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the preliminary decree should account for transfers among defendants at the stage of final allotment. He relies on documentary title showing purchase of shares from respondents 6 and 7 and argues the final decree incorrectly allocated those shares to them. He cites Niyamat Ali - Molla v. Sonargon Housing Co operative Society Ltd. & Others (AIR 2008 SC 225) to support corrective relief under CPC Section 152 and seeks correction of the final decree.

Contentions of Respondents

No appearance or recorded arguments; court notes lack of appearance from respondents.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Niyamat Ali - Molla v. Sonargon Housing Co operative Society Ltd. & Others	AIR 2008 SC 225	Positive	The Supreme Court decision was relied upon by the petitioner and used by the Kerala High Court to support the corrective relief under Section 152 CPC in final decree proceedings.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945** **OP(C) NO.433 OF 2020** **AGAINST THE ORDER/JUDGMENT DATED 11.12.2019 IN I.A.No.833/2018 IN FDIA NO.1788/2001 IN OS 252/2018 OF MUNSIFF COURT ,PARAPPANANGADI** **PETITIONER:** ALAVI HAJI, AGED 50 YEARS, S/O.MOIDEENKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADVS. P.BABU KUMAR SRI.P.YADHU KUMAR SRI.VISHNU BABU ## **RESPONDENTS/RESPONDENTS:** 1 MUHAMMED HANEEFA, S/O.MOIDEEN HAJI, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2 MOIDEENKUTTY, S/O.MOIDEEN HAJI, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 3 NASAR, S/O.MOIDEEN HAJI, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4 IBRAHIM, S/O.MOIDEEN HAJI, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 5 KADEEJA, D/O.MOIDEEN HAJI, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 6 KADEEJA, S/O.AHAMMEDKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. **OP(C) No.433 of 2020** **- 2 -** - 7 SHAHUL HAMEED, S/O.AHAMMEDKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 8 SUHARA, D/O.AHAMMEDKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 9 UMMUSALMA, D/O.AHAMMEDKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 10 MARIYAMU, W/O.AHAMMEDKUTTY(LATE), KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 11 MUHAMMED, S/O.MOIDEENKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 12 RAMLA, D/O.CHEKKU, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 13 SIHAB, S/O.CHEKKU, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 14 JIHAD, S/O.CHEKKU, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 15 IPPLIKKAT KUNHIKADIYA, W/O.CHEKKU, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. - 16 KOYAMU, S/O. MOIDEENKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. **OP(C) No.433 of 2020** **- 3 -** |**17 18 19 20 21 22 23 24 25|[KUNHEERUMMA D/O. MOIDEENKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT.] DIED** IYYAYAKUTTY, D/O.MOIDEENKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. PATHUMMAKUTTY, D/O.MOIDEENKUTTY, KOTTUVALA HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. MARIYAKUTTY, D/O.AHAMMED HAJI, OORATHIYIL HOUSE, THENNALA AMSOM, DESOM, PIN-691308, TIRURANGADI TALUK, MALAPPURAM DISTRICT. *ADDL.RESPONDENTS 21 TO 27 IMPLEADED ABDUL WAHAB.P, S/O.KUNHEERUMMA, RESIDING AT TIRUR- PARAPPTHIYIL HOUSE, TIRUR DESHAM, TIRUR AMSHAM (PO), TIRUR - PIN 676103. ABDUL LATHEEF.P, S/O.KUNHEERUMMA, RESIDING AT VAILTHUR- PARAPPTHIYIL HOUSE, PONMUNDAM DESHAM, CHILAVIL AMSHAM, PONMUNDAM P.O - PIN 676106. ABDUL MAJEED, S/O.KUNHEERUMMA, RESIDING AT ATHANKKAL- PARAPPTHIYIL HOUSE, PONMUNDAM DESHAM, CHILAVIL AMSHAM, PONMUNDAM P.O, PIN-676106. ABDUL HAMEED, S/O.KUNHEERUMMA, RESIDING AT VAILTHUR- PARAPPTHIYIL HOUSE, PONMUNDAM DESHAM, CHILAVIL AMSHAM, PONMUNDAM P.O, PIN-676106. ABDUL KAREEM, S/O.KUNHEERUMMA, RESIDING AT VETTCHIRA- PARAPPTHIYIL HOUSE, ATHAVANAD DESHAM, ATHAVANAD AMSHAM, KAIPPOL (P.O), PIN-676552.| |---|---| **OP(C) No.433 of 2020** **- 4 -** 26 IYYATHUMMU.P, W/O.MOIDUNNY, D/O.KUNHEERUMMA, RESING AT PERUMPILAVU- THURAKKAL HOUSE, KARIKKAD DESHAM, KARIKKAD AMSHAM, PERUMPILAVU (P.O), PIN-680519. 27 KADEEJA.P, W/O.MUHAMMED KUTTY K.P, D/O.KUNHEERUMMA, RESIDING AT PADAPPARAMBA -KP HOUSE, PADAPPARAMBA (P.O), PIN-679338. *ADDL.R21 TO R27 IMPLEADED AS LR'S OF R17 VIDE ORDER DATED 25.11.2022 IN I.A.NO.1/2022. **THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) No.433 of 2020** **- 5 -** ## **JUDGMENT** ## **Dated, this the 27[th] October, 2023** **The petitioner is the 3[rd] respondent in Final Decree proceedings, FDIA No.1788/2001 in O.S. No.252/2018. Even before passing the preliminary decree, the shares of respondents 6 and 7 were purchased by the 3[rd] respondent in the Final Decree, which fact was, however, omitted to be noticed while passing the preliminary decree and consequently, in the final decree. In the result, preliminary and final decrees were passed assigning the respective shares to defendants 6 and 7, who are respondents 6 and 7 in the Final Decree, instead of allotting their share to the 3[rd] respondent. The same is sought to be corrected by filing I.A.No.833/2018 under Section 152 of the Code of Civil Procedure. However, the learned Munsiff dismissed the said petition as per Ext.P4 order dated 11.12.2019, which is under challenge in this Original Petition.** **OP(C) No.433 of 2020** **- 6 -** **2. Although notice has been served upon the respondents, there is no appearance for any of the respondents before this Court.** **3. It was contended on behalf of the petitioner that the preliminary decree stipulates to take into account the transfers effected among the defendants, at the stage of final allotment of shares. Reliance was also placed on the judgment of the Honourable Supreme Court in Niyamat Ali - Molla v. Sonargon Housing Co operative Society Ltd. & Others [AIR 2008 SC 225]. It appears that there is no dispute of the fact that the shares of respondents 6 and 7 have been purchased by the petitioner herein, who was the 3[rd] respondent before the Final Decree court. Moreover, the petitioner had also produced the title deeds, as per which, he purchased the shares of respondents 6 and 7.** **4. In the circumstances, this Court is satisfied** **OP(C) No.433 of 2020** ## **- 7 -** **that I.A.No.833/2018 seeking correction of the Final Decree ought to have been allowed. The impugned Ext.P4 order is, therefore, set aside. The matter is remitted to the trial court, wherein the Final Decree Application is pending to consider and pass orders in I.A.No.833/2018 in accordance with law and in tune with the observations contained in this judgment. If as a matter of fact, the purchase of shares by the 3[rd] respondent (petitioner herein) is unassailable and undisputed, besides being proved by the documents produced before this Court, there is no prejudice being caused to any of the parties in modifying the decree accordingly.** **With these observations and directions, the above Original Petition will stand disposed of.** ## **Sd/-** ## **C.JAYACHANDRAN, JUDGE** ww **OP(C) No.433 of 2020** ## **- 8 -** The reference to O.S.No.252/2018 in the judgment dated 27.10.2023 in OP(C) 433/2020 is corrected as O.S.No.146/1999 as per order dated 22.03.2024 in IA 1/2024 in OP(C) 433/2020. Sd/Deputy Registrar **OP(C) No.433 of 2020** ## **- 9 -** ## **APPENDIX OF OP(C) 433/2020** PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PRELIMINARY DECREE DATED 28.7.2001. EXHIBIT P2 TRUE PHOTOCOPY OF THE FINAL DECREE DATED 30.8.2003. EXHIBIT P3 TRUE COPY OF THE CERTIFIED COPY OF THE COMMISSION REPORT DATED 21.5.2003. EXHIBIT P4 TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE ORDER DATED 11.12.2019 IN I.A. NO.833/18 IN FDIA NO.1788/01 IN O.S NO.252/2018 OF THE MUNSFIFF COURT, PARAPPANANGADI.