Kunjumol Thankappan v. Parvathi and others

``` OP(C) NO. 2037 OF 2022 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 OP(C) NO. 2037 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN EP 11/2017 OF MUNSIFF COURT, ``` ## **`PERUMBAVOOR`** ## **`PETITIONER/S:`** ``` KUNJUMOL THANKAPPAN AGED 64 YEARS W/O THANKAPPAN, KUTHUMANNU VEEDU, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM. , PIN - 683542 ``` ``` BY ADV R.DIVAKARAN ``` ## **`RESPONDENT/S:`** ``` 1PARVATHI AGED 77 YEARS, W/O. LATE PADMANABHA IYER, KOOVELI MADATHIL , VADAKKE PUTHEN MADATHIL, THENKURISSI AMSAM, VELIYANNUR PO, NENMARA TALUK, PALAKKAD REPRESENTED BY HER POWER OF ATTORNEY HOLDER BHAGEERATHI AMMAL, AGED 45 YEARS, W/O. K.S. BALA SUBRAMANIA IYER, KODUNGALLOOR MADATHIL, CHANDRASEKHARAPURAM GRAMAM, EDATHARA P.O., NOORANI VILLAGE, PALAKKAD TALUK, PALAKKAD . , PIN - 678001 2BHAGEERATHI AMMAL AGED 45 YEARS, W/O. K.S. BALA SUBRAMANIA IYER, KODUNGALLOOR MADATHIL, CHANDRASEKHARAPURAM GRAMAM, EDATHARA P.O., NOORANI VILLAGE, PALAKKAD TALUK, PALAKKAD . , PIN - 678001 3SARASWATHI AMMAL AGED 43 YEARS D/O. LATE PADMANABHA IYER, KOOVELI MADATHIL VADAKKE PUTHEN MADATHIL, THENKURISSI AMSAM, VELIYANNUR PO, NENMARA TALUK, PALAKKAD REPRESENTED BY HER POWER OF ATTORNEY HOLDER BHAGEERATHI AMMAL, AGED 45 YEARS, W/O. K.S. BALA SUBRAMANIA IYER, KODUNGALLOOR MADATHIL, CHANDRASEKHARAPURAM GRAMAM, ``` 2 ``` OP(C) NO. 2037 OF 2022 ``` ``` EDATHARA P.O., NOORANI VILLAGE, PALAKKAD TALUK, PALAKKAD . , PIN - 678001 4GANESH AGED 41 YEARS, S/O. LATE PADMANABHA IYER, KOOVELI MADATHIL VADAKKE PUTHEN MADATHIL, THENKURISSI AMSAM, VELIYANNUR PO, NENMARA TALUK, PALAKKAD REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BHAGEERATHI AMMAL, AGED 45 YEARS, W/O. K.S. BALA SUBRAMANIA IYER, KODUNGALLOOR MADATHIL, CHANDRASEKHARAPURAM GRAMAM, EDATHARA P.O., NOORANI VILLAGE, PALAKKAD TALUK, PALAKKAD BY ADVS. SRI.THOMAS GEEVARGHESE P. Thomas Geeverghese Adv. TONY THOMAS (INCHIPARAMBIL)(K/810/2010) E.S.FIROS(K/555/2014) AMRUTHA K.P.(K/836/2020) SRADHA MOHAN(K/001041/2022) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2037 OF 2022 ``` 3 ## **JUDGMENT** Aggrieved and dissatisfied with Ext.P10 order passed in E.A.No.229/2022 in E.P.No.11/2017 in O.S.No.189/2016 of the Court of the Munsiff, Perumbavoor, the judgment debtor has filed the original petition. The respondents are the decree holders in the execution petition. 2. The antecedent facts leading to Ext.P10 order, in a nutshell, are: the respondents had filed O.S.No.189/2016 against the petitioner for recovery of possession of a building situated in 30 cents of property in Koovappady Village and for a compensation of Rs.1,12,500/- for the unauthorised occupation of the building. Even though the petitioner had engaged an Advocate, he failed to contest the suit. An ex-parte decree was passed on 05.08.2016. The respondents laid the decree to execution. The respondents had not measured the property on the basis of Ext.P1 sale deed. As per the directions of this Court, the respondents ``` OP(C) NO. 2037 OF 2022 ``` 4 took out commission in the absence of the petitioner. The Advocate Commissioner has wrongly reported that the building No.19/340 obtained by the petitioner was not included. The Advocate Commissioner and Surveyor have committed a grave mistake. The petitioner has mortgaged the title deeds of the property with Koovappadi Service Cooperative Bank and availed loan. Hence, the property is the secured asset of the bank. The petitioner is a senior citizen. The petitioner filed E.A.No.229/2022 (Ext.P7) to stay the delivery of the property to the respondents and E.A.No.234/2022 (Ext.P8) to remit back the commission report. Thereafter, the petitioner filed OP© No.1908/2022 before this Court. By Ext.P9 judgment, this Court had directed the court below to issue carbon copies of the orders passed in E.A.No.229/2022 and 230/2022 within ten days from 07.10.2022. The court below, by the impugned Ext.P10 order, has dismissed Ext.P8 application. Ext.P10 is ex-facie illegal, improper and irregular. Hence, the original ``` OP(C) NO. 2037 OF 2022 ``` 5 petition. 3. Heard; Sri.R.Divakaran, the learned counsel appearing for the petitioner and Sri.Thomas Geevarghese, the learned counsel appearing for the respondents 1 to 4. 4. Sri.R.Divakaran assailed Ext.P10 order on the ground that the court below has failed to appreciate Ext.P8 application in its proper perspective. If the property is not properly identified by an Advocate Commissioner with the assistance of the Taluk Surveyor, it would cause great prejudice to the petitioner. Hence, Ext.P10 order warrants interference by this Court. 5. Sri.Thomas Geevarghese vehemently opposed the above submission and argued that the original petition is an abuse of the process of law. The petitioner has suppressed material facts in the original petition. The prayers in the present original petition have already been rejected by this Court in earlier rounds of litigation ``` OP(C) NO. 2037 OF 2022 ``` **==> picture [7 x 9] intentionally omitted <==** between the parties. It is suppressing all these facts that the present original petition is filed. 6. When the original petition came up for consideration on 26.10.2022, after hearing the respective counsel, this Court directed the petitioner to show cause why proceedings shall not be initiated against her for perjury and violating Rule 146 of the Rules of the High Court of Kerala, 1971. 7. Pursuant to the above order, the petitioner has filed an affidavit dated 28.10.2022 stating as follows: “2. As per my instructions, my counsel prepared the original petition. **At the time of filing the above OP(Civil) in advertently not mentioned the Special Leave Petition No.7179/2020 filed before the Honourable Supreme Court of India and also not mentioned the OP© No.597/2022 filed before this Honourable Court challenging the order dated 05.03.2022 in E.A.No.46/2022 in O.S.No.189/2016 of the Munsiff Court, Perumbavoor.** **3. The above OP© No.597/2022 and the SLP are filed as per the instructions of my son, Santhosh K. and he entrusted the Lawyer for filing the above cases. So I have no direct knowledge regarding the filing of the above cases. So, I could not inform the same to my present counsel regarding the above disposal of the** ``` OP(C) NO. 2037 OF 2022 ``` 7 ## **above cases. There is no willful negligence or latches on my part.** 4. Hence this Honourable Court may be pleased to condone my omission regarding the non-mentioning of the above cases in the above OP© and allow me to continue the above case. For that purpose this affidavit is filed”. 8. After the affidavit was placed on board, this Court called for the Judges’ Papers in OP© No.597/2022. 9. On a perusal of the Judges’ Papers in OP© No.597/2022, it is seen that this Court had earlier by judgment dated 20.07.2017 in OP© No.1932/2017 passed the following order: ## “4. xxxxxxxxxxxxx After considering the rival contentions, following directions are issued: The executing court shall decide identity of the property by allowing the application filed for issuance of a Commission and after getting a report and plan, the parties should be given an opportunity to file objections if any and thereafter, the matter shall be finally disposed of”. ## 10. It is also discernible from the materials on record ``` OP(C) NO. 2037 OF 2022 ``` 8 in OP© No.597/2022 that the petitioner had challenged the concurrent findings of the courts below before this Court in RSA No.181/2020. This Court by an exhaustive judgment in the second appeal held as follows: “7. The suit was decreed ex-parte on 05.08.2016. The application seeking to set aside the ex-parte decree was filed with a delay of 647 days. The case of the appellant was that, the counsel appearing on her behalf failed to intimate about the passing of the decree and she came to know about the same only on receipt of the notice on the execution petition, was the explanation offered. On receipt of notice on the EP she entered appearance and contested the execution proceedings. **As noticed above, an application was filed under Section 47 of the Code of Civil Procedure disputing the identity of the property. Pursuant to the direction in OP 1932/2017, the execution court identified the property by issuing a survey commission. It is after such identification and to prevent delivery that the appellant filed the application to set aside the ex-parte decree. It was found that the application lacks bona fides.** The dismissal of the application to set aside the ex parte decree was confirmed by this Court in OP 1626/2019 after taking into consideration all the circumstances. It is thereafter that the appellant filed the first appeal, with a delay of 1185 days. The first appellate court found lack of ``` OP(C) NO. 2037 OF 2022 ``` 9 bona fides and lack of sufficient explanation for the delay. The lack of bona fides on the part of the defendant being evident, the lower appellate court was right in refusing to condone the delay and in rejecting the appeal. The same warrants no interference. Substantial questions of law nos. (i) and (ii) are answered accordingly”. 11. It is after the passing of the above judgment that the petitioner filed O.P.No.597/2022 for the very same relief as sought in the present original petition. 12. This Court, after considering the fact that the petitioner had challenged the judgment in RSA No.181/2020 in SLP No.7179/2020 and the Honourable Supreme Court dismissed the SLP, by directing the petitioner to vacate the premises within six months and file an undertaking to the said effect, but the petitioner failed to comply with the undertaking, dismissed the original petition categorically holding that the petitioner is not entitled to seek for remission of the commission report. ``` OP(C) NO. 2037 OF 2022 ``` 10 13. After suffering the above judgment, the petitioner has consciously filed Ext.P8 application, seeking the very same relief that was earlier declined and confirmed by this Court in OP(C) No.597/2022. 14. The court below, after elaborately considering all the previous attempts made by the petitioner, especially the finding of this Court in RSA No.181/2020, has rightly dismissed the application by the impugned order holding that the application is an abuse of process of law. 15. The petitioner instead of stopping her endeavour to cling on to the building after dismissal of the SLP, has shown the audacity to file the present original petition that too after filing a false affidavit and not revealing the details of the cases in the previous rounds of litigation, particularly, the dismissal of OP© No.597/2022. 16. The attempt of the petitioner is nothing but a sheer abuse of process of law. The petitioner has consciously and ``` OP(C) NO. 2037 OF 2022 ``` **==> picture [13 x 8] intentionally omitted <==** willfully suppressed material facts to hoodwink this Court and secure an ad-interim order of stay of the execution proceedings. 17. The decree in the suit was passed as early as on 05.08.2016 and that the petitioner had in unequivocal terms undertaken before the Honourable Supreme Court to vacate the premises within six months from 17.06.2020. 18. Instead of honouring her undertaking, even after two years, the petitioner is tenaciously resisting the execution petition. The petitioner’s explanation in her affidavit that it was her son who filed the SLP and OP© No.597/2022 can only be accepted with a spoon of salt because it is she who has filed OP© No.597/2022 and the accompanying affidavit. 19. This Court has no doubt in its mind that the petitioner has deliberately suppressed the previous litigation in the original petition and accompanying ``` OP(C) NO. 2037 OF 2022 ``` 12 affidavit to mislead this Court. The sharp practices of the petitioner is deprecated. Ext.P8 application is hit by the principles of res-judicata. Following the directions of the Honourable Supreme Court in paragraph 42.10 in **Rahul S.Sahah v. Jinendra Kumar Gandhi and others** [(2021) 6 SCC 418], that frivolous application in execution proceedings have to be dismissed with exemplary costs, I dismiss the original petition and confirm Ext.P10 order and impose a cost of Rs.50,000/- to be paid by the petitioner to the respondents within three weeks from today. If the cost is not paid, the respondents would be at liberty to execute the judgment before the court below, in accordance with law. I refrain from initiating contempt proceedings against the petitioner considering her age and the quantum of cost imposed. sd/- **C.S.DIAS, JUDGE** rkc/15.11.22 ``` OP(C) NO. 2037 OF 2022 ``` 13 ## **`APPENDIX OF OP(C) 2037/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1THE TRUE COPY OF THE SALE DEED NO. 1240/2000 OF SRO. PERUMBAVOOR ``` - `Exhibit P2 THE TRUE COPY OF THE LAND TAX RECEIPT DATED 02.04.2022` - `Exhibit P3 THE TRUE COPY OF THE RESIDENTIAL CERTIFICATE ISSUED BY THE GRAMAPANCHAYATH DATED 14.07.2022` - `Exhibit P4 THE ASSESSMENT REGISTER OF THE BUILDING NO. 19/340 OF KOOVAPPADY VILLAGE IN THE NAME OF PETITIONER'S HUSBAND THANKAPPAN FROM 2013-2014` - `Exhibit P5 THE TRUE COPY OF THE COMMISSION REPORT FILED IN THE EXECUTION PETITION IN E.P. NO. 11/2017 IN OS NO. 189/2016 DATED 15.03.2018` - `Exhibit P6 THE TRUE COPY OF THE SURVEY SKETCH IN SURVEY NO. 355/4 OF KOOVAPPADY VILLAGE PREPARED BY THE RETIRED TALUK SURVEYOR DATED 13.07.2022` - `Exhibit P7 THE TRUE COPY OF THE PETITION FILED FOR MEASURING THE PROPERTY ON THE BASIS OF SALE DEED NO. 1240/2000, SRO, PERUMBAVOOR AND ALSO ON THE BASIS OF THE SURVEY RECORDS OF KUNNATHUNADU TALUK IN E.A. NO. 229/2022 DATED 27.09.2022` - `Exhibit P8 THE TRUE COPY OF THE PETITION TO REMIT BACK THE COMMISSION REPORT IN EA NO. 234/2022` ``` Exhibit P9THE TRUE COPY OF THE JUDGEMENT IN O.P. (CIVIL) NO. 1908/2022 DATED 07.10.2022 ``` - `Exhibit P10 THE TRUE COPY OF THE ORDER IN E.A. NO. 229/2022 DATED 27.09.2022.`