Kochupaul and Devassykutty v. Jose, Vincent and Subramanian (OP(C) No. 2074 of 2021)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 2074 OF 2021** **AGAINST THE ORDER IN EP 1904/2009 IN OS 8/2000 OF ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA** ## **PETITIONERS/JUDGMENT DEBTORS 2 AND 3/DEFENDANTS 2 AND 3:** 1 KOCHUPAUL AGED 65 YEARS S/O.ANTHONY, RESIDING IN THE ADDRESS PANAMKOODAN HOUSE, KALLETTUMKARA VILLAGE DESOM, KALLETTUMKARA P.O., THRISSUR DISTRICT - 680 683. 2 DEVASSYKUTTY AGED 73 YEARS S/O.DEVASSY, RESIDING IN THE ADDRESS KUZHIYANI HOUSE, KALLETTUMKARA VILLAGE DESOM, KALLETTUMKARA P.O., THRISSUR DISTRICT - 680 683. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENTS/DECREE HOLDER AND JUDGMENT DEBTORS 1 AND** **4/PLAINTIFFS, DEFENDANTS 1 & 4:** 1 JOSE AGED 63 YEARS S/O.LONAPPAN, RESIDING IN THE ADDRESS PUNNELIPARAMBIL HOUSE, KALLETTUMKARA DESOM, THAZHEKAD VILLAGE, MUKUNDAPURAM TALUK, KALLETTUMKARA P.O., THRISSUR DISTRICT - 680 683. 2 VINCENT AGED 67 YEARS S/O.ANTHONY, RESIDING IN THE ADDRESS PANAMKOODAN HOUSE, KALLETTUMKARA VILLAGE DESOM, KALLETTUMKARA P.O., THRISSUR DISTRICT - 680 683. 3 SUBRAMANIAN AGED 75 YEARS S/O.PARANKUTTI, RESIDING IN THE ADDRESS VALLOOPARAMBIL HOUSE, KALLETTUMKARA VILLAGE DESOM, KALLETTUMKARA P.O., THRISSUR DISTRICT - 680 683. BY ADV R.K.MURALEEDHARAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2021, THE COURT ON 01.12.2021 DELIVERED THE FOLLOWING: O.P(C).No.2074/2021 2 **“CR”** ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.2074 of 2021_ ================================ _Dated this the 1[st] day of December, 2021_ ## _**J U D G M E N T**_ In this Original Petition(Civil) filed under Article 227 of the Constitution of India the petitioners seek to call for the records leading to Ext.P7 order in E.P.No.1904/2009 in O.S.No.8/2000 on the file of Additional Munsiff Court, Irinjalakuda dated 30.10.2021 and to set aside the same. 2. The specific contention raised by petitioners 1 and 2, who are judgment debtors 2 and 3/defendants 2 and 3 in the above case is that originally O.S.No.8/2000 was filed by one Jose, the 1st respondent, herein as plaintiff for fixing the northern boundary of plaint A schedule property and for recovery of C schedule property in the event of the same forming part of the plaint A schedule property. After trial, suit was decreed by the Munsiff and the plaintiff was allowed to recover possession of O.P(C).No.2074/2021 3 1.88 cents of property comprised in Sy.No.184/1 as identified in Ext.C1(a) plan from the possession of the defendants. Challenging the said decree, A.S.No.173/2002 was filed by the defendants before Principal Sub Court, Irinjalakuda and the said appeal was dismissed confirming the decree. Against which, R.S.A.No.560/2007 was filed and this Court delivered judgment on 15.12.2014. As per judgment of this Court, the decrees and judgments of the trial court and the first appellate court were confirmed and thereafter the case was remitted back to the trial court for the limited purpose of deciding the quantum of compensation to be given to the plaintiff to retain possession of plaint B schedule property by the defendants ordered to be recovered and for this purpose, the trial court was directed to depute a commissioner to value the property. 3. It was thereafter as per Ext.P5 judgment dated 29.06.2015, the learned Munsiff ventured the limited question referred by way of remand and finally directed the defendants to pay Rs.9,40,000/- as compensation to retain plaint B schedule property. Since the defendants did not obey Ext.P5 order, the O.P(C).No.2074/2021 4 decree holder put the decree in execution by filing E.P.1904/2009 which led to Ext.P7 order when the defendants raised the contention that the decree and judgment confirmed by this Court cannot be executed. As per Ext.P7 the execution court negatived the contention and found that the decree is executable for recovering possession of B schedule. 4. The petitioners would contend that Ext.P7 order is illegal as after the order of remand the decree and judgment of the trial court and the first appellate court deemed to have been reversed as it is mandatory to reverse the decree and judgment before remanding a matter to the trial court. 5. It is in this context the power of the appellate court to remand a matter and the conditions required to order remand are to be discussed. At the same time, a pertinent question as to whether a remand order by itself would operate as deemed reversal of the decree and judgment under challenge also to be answered. 6. It is contended by the petitioners that as per Order 41 Rule 23 of Code of Civil Procedure, an appellate court has the O.P(C).No.2074/2021 5 power to remand a case only on satisfying 2 conditions. Decision reported in [2016 (4) KHC 160], _**John A.Augustine v. M.R.Renjan & Ors.**_ of this Court has been given emphasis in this regard. In fact, this Court considered the scope of remand in this case and it was observed that _on a close reading of R.23A of O.41 of the Code it will be evident that, to invoke the power, vested in an Appellate Court, to remand a case, twin satisfactions will have to be arrived at._ _**Firstly, the Appellate Court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed.** Only after taking such a decision, the Appellate Court can step into the next arena._ _**Second condition to be satisfied for invoking the power is that, the Appellate Court on merits, should find that a retrial is essential for the complete adjudication of the lis between he parties** . Well settled is the proposition of law that whether the Court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and reasonable premises and guided by judicial principles._ _7._ In fact, as early in 2002 the Honourable Supreme O.P(C).No.2074/2021 6 Court considered the scope and ambit of remand in the decision reported in [AIR 2002 SC 771], _**P.Purushottam Reddy & anr. v.**_ ## _**M/s.Pratap Steels Ltd.**_ and it was held as under: _It is only in exceptional cases the Court may exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by O.20, R.3 or O.41, R.31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by R.23 or R.23A or R.25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and therefore must be avoided._ 8. Apart from that, in the decision reported in [(2008) 8 SCC 485], _**Municipal Corporation, Hyderabad v. Sunder Singh**_ , the Apex Court considered the essentials before remanding a case under Order 41 Rule 23 in para.18 as under: _“18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.”_ O.P(C).No.2074/2021 7 9. The ratio in _**John A.Augustine**_ 's case ( _supra_ ) has been followed in another decision of this Court reported in [2015 (2) KHC 802 : 2015 (4) KLT SN 50], _**Sundaram Hammond v. K. Padmanabhan & Ors.**_ 10. In the instant case this Court as per Ext.P3 judgment, in fact, confirmed the decree of the lower appellate court and thereafter remanded the matter for the purpose of deciding the quantum of compensation to get the B schedule property valued. Para.16 of Ext.P3 is apposite and the same is extracted hereunder: _“16. As this Court feels that there is no reason to interfere with the decree of recovery, this Court is of the view that the decree of the lower appellate court can be upheld and the matter can be remitted back to the trial court for the limited purpose of deciding the quantum of compensation to be given to the respondents in lieu of B-Schedule property which is sought to be recovered. The trial court shall depute a Commissioner to get the B-Schedule property valued. The parties are at liberty to adduce additional evidence also in support of their respective contentions regarding the value of the property. The entire exercise shall be completed by the trial court within a period of three months from the date of appearance of the parties.”_ 11. Even on repeated reading of the judgment with specific mention to the paragraph extracted above what can be construed is that the decree for eviction passed by the lower court O.P(C).No.2074/2021 8 and the appellate court were upheld and as such the same merged with the judgment and decree in R.S.A.No.560/2007 (Ext.P3). 12. However, an opportunity was given to the defendants to purchase the property by paying compensation. Thereafter, the learned Munsiff considered the Suit again for the limited purpose as directed by this Court. Ext.P5 is the judgment rendered thereafter on 29.06.2015. As per Ext.P5, the learned Munsiff directed the defendants to pay an amount of Rs.9,40,000/- as compensation to the plaintiff for 1.88 cent of plaint B schedule property within 2 months from the date of the judgment for retaining possession of the said property by the defendants. However, the defendants were not ready to pay the above amount and finally the decree has been put in execution. Then the petitioners had raised a contention that the decree to be executed is one dated 29.06.2015 (the decree passed after remand) and not decree dated 12.08.2002 (decree passed before remand and confirmed in R.S.A.No.560/2007). The contention raised by the judgment debtors before the executing court is that the decree dated 12.08.2002 is not subsisting and a further decree for O.P(C).No.2074/2021 9 eviction could have been passed to execute the eviction of the defendants from plaint B schedule property. 13. As per order dated 30.10.2021, the executing court dismissed the petition holding that Ext.P2 decree dated 12.8.2002 is executable and the objection raised by the judgment debtors to be rejected. It is at this juncture, this Original Petition has been filed. 14. The learned counsel for the petitioners argued mainly relying on Order 41 Rule 23 and 23A of the Code of Civil Procedure on the specific assertion that no remand could be made without reversing the decree. While exercising jurisdiction under Article 227 of the Constitution, this Court need not consider the legality of Ext.P3 which attained finality. However, the well settled legal proposition as to satisfaction of the twin conditions discussed above in detail has to be followed while making an order of remand. 15. Here, as per Ext.P3 judgment, this Court in fact confirmed the decree and judgment and given a concession to the defendants/judgment debtors to pay compensation to be fixed by O.P(C).No.2074/2021 10 the trial court by deputing a commission to retain the property sought to be evicted. To put it otherwise, the definite finding in Ext.P3 judgment of this Court is by confirming the decree and judgment passed by the lower appellate court and therefore the same became final subject to the reservation that the petitioners herein could pay the compensation fixed by the commissioner to retain the property. Thus it appears that the concession given by this Court by way of remand, though not exactly as provided under Order 41 Rule 23, 23A and 25, cannot by itself to be held as deemed reversal of the decree of the trial court or the first appellate court in any manner and eventually Ext.P3 judgment and the decree thereof merged with the lower courts decree and as such the said decree is perfectly executable. Admittedly, the judgment debtors are not ready to pay Rs.9,40,000/- fixed by the commissioner and directed to be paid by the defendants to the plaintiff as per Ext.P5 judgment. Thus the seminal question as to whether remand of a case before the trial court by this Court after confirming the decree and judgment for a limited purpose of considering payment of compensation to retain the property O.P(C).No.2074/2021 11 sought to be recovered by itself to be treated as reversal, despite failure to pay the compensation, is answered holding that an order of remand by itself does not operate as deemed reversal of the decree impugned in the appeal, if the order of remand does not say specifically that the decree impugned has been reversed. The position is more regid when the remand order itself, in exact terms, confirms the decree impugned. In fact, decree and judgment dated 12.08.2002 merged with Ext.P3 judgment and decree thereof, still survive for execution. It is interesting to note that the Suit is of the year 2000 and 21 years have now elapsed. Now the petitioners want to retain the property as their own without executing the decree and without paying the compensation fixed and ordered to be paid by the Munsiff Court. 16. The upshot of the discussion is that the decree dated 12.08.2002 of the Munsiff Court confirmed as per the judgment dated 29.03.2019 by the first appellate court as well as this Court as per Ext.P3 is the legally executable decree and the objection raised by the petitioners cannot be sustained. Therefore, this petition deserves dismissal and is accordingly dismissed. O.P(C).No.2074/2021 12 Consequently it is ordered that the interim order granted by this Court shall stand vacated and the execution court is directed to expedite the execution of the decree at the earliest taking note of the fact that the Suit dates back to 2000. Registry is directed to forward a copy of this judgment within 3 days to the execution court for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.2074/2021 13 ## **APPENDIX OF OP(C) 2074/2021** PETITIONERS' EXHIBITS Exhibit P1 A TRUE COPY OF THE PLAINT IN O.S.NO.8 OF 2000 DATED 3/1/2000 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA. Exhibit P2 A TRUE COPY OF THE DECREE PASSED IN O.S.NO.8 OF 2000 DATED 12/8/02 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA. Exhibit P3 A TRUE COPY OF THE JUDGMENT DELIVERED BY THIS HON'BLE COURT IN RSA NO.560 OF 2017 DATED 15/12/14. Exhibit P4 A TRUE COPY OF THE JUDGMENT DELIVERED BY THIS HON'BLE COURT IN FAO (RO) NO.341 OF 2014 DATED 20/7/2016. Exhibit P5 A TRUE COPY OF THE JUDGMENT DELIVERED IN OS NO.8 OF 2000 DATED 29/6/15 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA. Exhibit P6 A TRUE COPY OF THE JUDGMENT DELIVERED IN AS NO.112 OF 15 DATED 29/3/19 BEFORE THE SUB COURT, IRINJALAKUDA. Exhibit P7 A TRUE COPY OF THE ORDER PASSED IN EP NO.1904 OF 2009 IN AS NO.112 OF 2015 DATED 30/10/21 BY THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA.