Limiya Thomas v. Nikhil George and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945** **RP NO. 37 OF 2024** **AGAINST THE JUDGMENT DTD 16.10.2023 IN Mat.Appeal 302/2019 OF HIGH** ## **COURT OF KERALA** ## **REVIEW PETITIONER/RESPONDENT:** **LIMIYA THOMAS, AGED 35 YEARS** **D/O N.J.THOMAS NELLISSERY HOUSE, SHANTIGRAM, MANJERI AMSOM, DESOM AND POST ERNAD TALUK, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER; SMT. ROSELY THOMAS, W/O N.J.THOMAS NELLISSERY HOUSE, SHANTIGRAM MANJERI AMSOM, DESOM AND POST ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676121** **BY ADVS.P.VENUGOPAL SRILAKSHMI T.S. VARGHESE THOMAS** ## **RESPONDENTS/APPELLANTS:** - **1 NIKHIL GEORGE, S/O GEORGE P.J., POOVAKKODE HOUSE, KOODATHAYI BAZAR P O, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN - 673573** - **2 GEORGE P.J S/O JOSEPH @ OUSEPH POOVAKKODE HOUSE, KOODATHAYI BAZAR-P O, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN - 673573** - **3 JEENA, D/O GEORGE P.J. KADUMKEERIYIL HOUSE, MAIKAVU-P O KOODATHAYI AMSOM, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN - 673573** - **4 TOMY S/O DAVID @ JOY (LATE) KADUMKEERIYIL HOUSE, MAIKAVU-P O KOODATHAYI AMSOM, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN - 673573** - **5 JISHA W/O JOSHY THOMAS PUTHIYEDATH HOUSE, ORAPPINKAL, KODENCHERY-P O , THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN - 673580** **BY ADVS.EBIN MATHEW P.J.MATHEW(K/203/1985) AKHILA SHOJI(K/000593/2017)** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** ## **AMIT RAWAL & C.S.SUDHA, JJ.** **----------------------------------------------------R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019 -----------------------------------------------------------------Dated this the 22[nd] day of February, 2024** ## **O R D E R** ## **C.S.Sudha, J.** This application has been filed by the respondent/wife in Mat.Appeal No.302/2019 to review the judgment dated 16/10/2023 by which the appellants, her husband and in-laws, have been directed to return the gold/diamond ornaments scheduled in O.P.No.497/2015 on the file of the Family Court, Malappuram, as 'C' schedule or its market value of ₹6,89,529/- with interest at the rate of 6% per annum from the date of petition till realization and costs. According to the review petitioner/wife, gross injustice has been caused to her by granting such a decree by which the counter petitioners herein have been given the liberty to keep the ornaments with them and alternatively to pay the market value of the ornaments claimed in the original petition. If the ornaments as such are returned, there would be no room for grievance for the review petitioner. The review 3 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** petitioner is entitled to get either the 'C' schedule ornaments or its market value as on the date of payment. Reference is made to the dictums in **William David @ Bijo v. Linu Mary George, 2010(4) KHC 748 : 2010(4) KLT 691 ; Vinod v, Soumya, 2022 KHC 310 : Anil Cherian Polachirackal alias Anil Nainan v. Asha K.Thomas, 2022 KHC 4896 ; Syamini S.Nair v. Sreekanth R, 2022(3) KHC 145** in support of this argument. 2. The counter petitioners object to the review petition on the ground that all what had been sought for in the original petition has been granted to the petitioner. The same has been confirmed by this Court in its judgment dated 16/10/2023. There is no error apparent on the face of the record calling for a review, contend the counter petitioners. 3. The prayer in O.P.No.497/2015 _inter alia_ was for return of gold/diamond ornaments referred to in the 'C' schedule or its market value of ₹6,89,529/- with interest at the rate of 6% per annum from the date of petition till realization and costs from the counter petitioners. The relief claimed as such was allowed by the Family Court. In addition to the return of gold/diamond ornaments, there was also a claim for return of certain 4 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** amounts of money, which was also allowed. The only relief that was declined was the interest claimed by her on the amounts claimed. The counter petitioners, aggrieved by the judgment and decree dated 29/09/2018 in O.P.No.497/2015 filed the appeal. The petitioner moved cross objection no.171/2019, aggrieved by the denial of interest claimed by her. The prayer in the cross objection was declined by this Court in the judgment dated 16/10/2023. According to the learned counsel for the review petitioner by virtue of Order XLI Rule 33, the petitioner is entitled to the relief even in the absence of any cross objection to the said effect. 4. Heard both sides. 5. Order XLI Rule 33 says that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees 5 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Here we refer to the dictum of the Apex Court in **Lakshmanan v. G.Ayyasamy, (2016)13 SCC 165** in which the question that was considered was the power of the appellant court to interfere with and reverse or modify the decree appealed in the absence of any cross - appeal or cross - objection by the respondent under O.41 R.22 CPC and the scope of power conferred on the appellate court under R.33 of O.41 CPC. It has been held that O.41 R.4 seeks to achieve one of the several objects sought to be achieved by R.33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above said provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject - matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or 6 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the trial court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually, the power under R.33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be 7 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under R.33 of O.41. (See also **Ram Phal case, Banarsi v. Ram Phal** , **(2003)9 SCC 606** ). 6. The present case does not in any way call for the application of Order 41 Rule 33 CPC. Further, as noticed earlier, the relief as sought for by the petitioner relating to gold ornaments has been allowed and therefore nothing remained “which ought to have been granted” in favour of the petitioner. As the relief as prayed for has been granted, there cannot be any further order to do further justice to her. If the prayer as sought for in this present petition is allowed, it would in effect be allowing a relief which was 8 ## **R.P.No.37 of 2024 in Mat. Appeal No.302 of 2019** never sought for in the petition. Though this Court under Section 107 CPC has wider powers, it cannot go outside pleadings and make out a new case for the petitioner. ( **Ishwar Dutt v. Land Acquisition, Collector, AIR 2005 SC 3165)** . In such circumstances, we find no error apparent on the face of the record calling for a review. In the result, the petition is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/