Gopakumar v. Pushpalatha and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-07-15
Court Decision / Holding: Original petition fails and is dismissed. Ext. P8 order is upheld; there is no illegality or irregularity in the execution proceedings. The decrees in O.S. 403/2008 and related orders remain valid. The petition is a sheer abuse of process of law.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

GOPAKUMAR

Respondents

PUSHPALATHA
JALAJAMBIKA
PRASANNA KUMARI
AJAYA KUMAR
HARI KUMAR
REMA DEVI

Legal Representation & Advocates

Counsels for Petitioners

• M.T.SURESHKUMAR
• SHRI.R.RANJITH,SC,KOOVAPPADY GRAMA PANCH
• SMITHA PHILIPOSE
• P.R.JAYASANKAR
• MANJUSHA K
• SREELAKSHMI SABU

Case Synopsis & Summary

On 15 July 2022, the High Court of Kerala at Ernakulam heard OP(C) No. 1274 of 2022, an original petition filed by Gopakumar challenging decrees in O.S. No. 403/2008 of the II Additional Munsiff Court, Thiruvananthapuram, and their confirmations, in a partition suit. The suit was instituted by the first respondent for partition, resulting in a decree that allocated a share to Ajayakumar, the 4th defendant, who was alleged to be of unsound mind. Ajayakumar appeared through counsel, filed his vakalath and written statement, and the decree was passed in his favour, later confirmed by the Appellate Courts and this Court in RSA No. 1498/2013. The petitioner filed Ext. P5 seeking to declare the decrees non-est on the ground that Ajayakumar was not represented by a guardian in accordance with Order XXXII, Rule 15 CPC, and that lack of a next friend vitiates the proceedings. Ext. P8 dismissed Ext. P5; the petition argued that the decrees are void and unenforceable. The respondents opposed, contending Ajayakumar appeared and defended, and there is no proof that he was unsound-minded. The court ultimately held there was no illegality or irregularity in Ext. P8 and dismissed the original petition, noting the petition as a clear abuse of process and upholding the decrees.

Provisions of Law Cited

Order XXXII, Rule 15, CPC 1908Code of Civil Procedure, 1908

Legal Doctrines & Maxims

Omission to appoint a next friend is an irregularity and is not a fatal defect.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the decree in O.S. 403/2008 was obtained in the absence of a guardian for the 4th defendant Ajayakumar, who was alleged to be of unsound mind. Since Order XXXII, Rule 15 CPC requires a next friend or guardian for such a person, the petitioner argues the decrees (Exts. P1–P3) are non-est and unenforceable. The execution petition (EP 209/2019) was improperly progressed, and Ext. P5 sought to challenge the decrees on this ground. The petitioner relies on Akku Amma v. Kunhi Raman Nair to contend that the omission to appoint a next friend is irregular but not fatal. The petition is a legitimate attempt to rectify a manifest irregularity; however, the petitioner later argues there is no bonafide reason to challenge the decrees.

Contentions of Respondents

The respondents maintain that Ajayakumar appeared through vakalath, filed his WS, and participated in the suit; the decree in his favour was confirmed by two appellate courts and by this Court. There is no admissible evidence that Ajayakumar was a person of unsound mind, and the fact of his death does not negate the earlier proceedings where he appeared. The Court below correctly rejected Ext. P5, and there is no illegality or irregularity in Ext. P8. The petition is an abuse of process and the decrees should stand; the lack of a guardian, if any, is not demonstrated to have vitiated the proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Akku Amma & others v. Kunhi Raman Nair & others	1963 KHC 319	Positive	The court cites Akku Amma to support that the omission to appoint a next friend is an irregularity and not a fatal defect.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 ``` ``` OP(C) NO. 1274 OF 2022 ``` ``` IN EA 371/2022 IN EP NO.209/2019 IN O.S. NO.403/2008 OF II ADDITIONAL MUNSIFF COURT ,TRIVANDRUM ``` ## **`PETITIONER:`** ``` GOPAKUMAR AGED 63 YEARS S/O. RAGHAVAN NAIR, GURULAYAM, SASTHA NAGAR, KALLYAM PO. THIRUVANANTHAPURAM., PIN - 695028 ``` ``` BY ADVS. M.T.SURESHKUMAR SHRI.R.RANJITH,SC,KOOVAPPADY GRAMA PANCH SMITHA PHILIPOSE P.R.JAYASANKAR MANJUSHA K SREELAKSHMI SABU ``` ## **`RESPONDENTS:`** ``` 1PUSHPALATHA AGED 56 YEARS D/O. RAGHAVAN NAIR , SASTHAKRIPA, KALLYAMPO. KUDAPPANAKKUNNU VILLAGE , THIRUVANANTHAPURAM PIN- 695028. (NOW RESIDING AT THARAVADU NEAR T V CENTRE , KUDAPPANAKKUNNU P O , THIRUVANANTHAPURAM., PIN - 695043 2JALAJAMBIKA AGED 64 YEARS D/O RAGHAVAN NAIR, GURULAYAM, SASTHA NAGAR, KALLAYAM P.O., THIRUVANANTHAPURAM, PIN - 695028 3PRASANNA KUMARI AGED 62 YEARS D/O RAGHAVAN NAIR, 'SANTHA NILAYAM', KALLAYAM P.O., THIRUVANANTHAPURAM, PIN - 695028 4AJAYA KUMAR S/O RAGHAVAN NAIR, 'SASTHA KRIPA' , KALLAYAM P.O., THIRUVANANTHAPURAM ( SINCE DECEASED REPRESENTED BY THE ``` ``` OP(C) NO. 1274 OF 2022 2 ``` ``` PETITIONER HEREIN ABOVE AND OTHER RESPONDENTS)., PIN - 695028 ``` ``` 55. HARI KUMAR AGED 54 YEARS S/O RAGHAVAN NAIR,'SASTHA KRIPA' , KALLAYAM P.O., THIRUVANANTHAPURAM, PIN - 695028 6REMA DEVI AGED 52 YEARS D/O RAGHAVAN NAIR, 'REMANIKA' , CHOOZHAMPALA , MUKKOLA P.O THIRUVANANTHAPURAM, PIN - 695028 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1274 OF 2022 3 ``` ## **Dated this the 15[th] day of July, 2022** ## **JUDGMENT** The original petition is filed to set aside the order in E.A.No.371/2022 in E.P.No.209/2019 in O.S. No.403/2008 of the Court of the Additional Munsiff-II, Thiruvananthapuram. 2. The concise case of the petitioner, relevant for the determination of the original petition is that, he was the third defendant in O.S. No.403/2008, which was filed by the first respondent, for a decree of partition. The suit was decreed as per Ext.P1 judgment. The judgment and decree were concurrently confirmed by Ext.P2 judgment of the Court of the Additional District Judge, Thiruvananthapuram and Ext.P3 judgment by this Court in R.S. A. No.1498/2013. The first respondent has put the decree to execution. The petitioner, who is the 3[rd] judgment debtor, has filed Ext.P4 objection to the ``` OP(C) NO. 1274 OF 2022 4 ``` execution petition. During the course of the proceeding, the petitioner had filed Ext.P5 application, inter alia, contending that the decree is non-est, as the 4[th] defendant in the suit- Ajayakumar- the brother of the petitioner (who is now no more, but has been impleaded in this original petition as the 4[th] respondent) was a lunatic, but was not represented by a guardian in violation of the provisions of Order XXXII, Rule 15 of the Code of Civil Procedure, 1908. Therefore, Exts. P1 to P3 decrees are null and void and unenforceable. The application was opposed by the first respondent, who had filed Ext.P6 objection. Ext.P7 will specifically states that the 4[th] respondent was a person of unsound mind. The above aspects went unnoticed by the three courts on the original side, therefore, the decrees are null and void. The execution court has, without adverting to the said contentions, dismissed Ext.P5 application by Ext.P8 order. Ext.P8 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.Suresh Kumar, the learned counsel ## **`OP(C) NO. 1274 OF 2022 5`** appearing for the petitioner. 4. The point is whether there is any illegality or error in Ext.P8 order. 5. Undisputedly, O.S. No.403/2008 was filed by the first respondent, for a decree of partition. Ajayakumar – the person of an alleged unsound mind – was the 4[th] defendant in the suit. The 4[th] respondent entered appearance in the suit by filing his vakkalath and had also filed his written statement. He also entered appearance before the lower Appellate Court and this Court in the second appeal. The suit was decreed by giving the 4[th] respondent a share in the plaint schedule property. The said decree was concurrently confirmed by the two appellate courts. Then, the execution petition was filed in the year 2019. 6. On 04.06.2022, i.e. after 14 years, the petitioner got enlightened that his sibling – the 4[th] respondent was a person of unsound mind – was not represented by a next friend, as provided under Order XXXII Rule 15 of the Code in the above proceedings. Thus, he thought it fit to ## **`OP(C) NO. 1274 OF 2022 6`** file Ext.P5 application to hold that the judgments and decrees were non-est. 7. It is an admitted fact that the 4[th] respondent (Ajayakumar) died on 16.10.2020. All through out the above proceedings, neither Ajayakumar nor any other person who was interested in him had raised a contention that Ajayakumar was a person of unsound mind. Ajayakumar himself had prosecuted the proceedings before the three courts, which was also not objected to by any person. A decree has been passed in favour of Ajayakumar, giving him a share in the plaint schedule property. Therefore, by no-stretch of imagination, can it be said that the judgments and decrees passed by the courts on the original side were adverse to the interest of Ajayakumar. Moreover, there is nothing on record to prove that Ajayakumar was a person of unsound mind as now alleged by the petitioner. 8. Furthermore, this Court in **Akku Amma & others v. Kunhi Raman Nair & others** [1963 KHC 319] has held that the omission to appoint a next friend is an ``` OP(C) NO. 1274 OF 2022 7 ``` irregularity and is not a fatal defect. At the cost of repetition it is reiterated that the decree was passed in favour of the so called unsound person, so his interest was well protected. The present interest now shown by the petitioner is only to be perceived to be an after thought, to stall the execution proceeding. On a consideration of the pleadings and materials on record, I do not find any bonafides in the petitioner raising the above plea regarding the non- executability of the decrees passed by the three courts. The original petition is a sheer abuse of process of law. There is no illegality or irregularity in Ext.P8 order passed by the court below. The original petition fails and is hence dismissed. **Sd/-** **C.S.DIAS, JUDGE** rmm15/07/2022 ## **`OP(C) NO. 1274 OF 2022 8`** ## **`APPENDIX OF OP(C) 1274/2022`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 23/5/2011 IN O S NO. 403/2008 BEFORE ADDITIONAL MUNSIFF'S COURT-II, THIRUVANANTHAPURAM .` - `Exhibit P2 TRUE COPY OF THE JUDGMENT IN A S.NO. 139 OF 2011 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE-II, THIRUVANANTHAPURAM DATED 31-1-2013` - `Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 19-112014 IN R S A NO. 1498 OF 2013 BEFORE THIS HON'BLE COURT.` - `Exhibit P4 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN EP NO. 209 OF 2019 ON THE FILE OF THE ADDL. MUNISIFF COURT -II, THIRUVANANTHAPURAM` - `Exhibit P5 TRUE COPY OF THE PETITION AND AFFIDAVIT IN E A NO. 371 OF 2022 IN EP NO. 209 OF 2019 DATED 4/6/2022 ON THE FILE OF THE ADDL MUNISIFFS COURT- II, THIRUVANANTHAPURAM` - `Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT/DECREE HOLDER IN EA 371 OF 2022` - `Exhibit P7 TRUE COPY OF THE EXHIBIT B1 WILL DATED 10-10-1994` - `Exhibit P8 CARBON COPY OF THE COPY OF THE ORDER DATED 29-6-2022 IN EA NO. 371 OF 2022 IN EP NO. 209 OF 2019 ON THE FILE OF THE ADDL MUNISIFFS COURT- II, THIRUVANANTHAPURAM`