M. Muhammed Madani v. Amina and others

**OP(C) NO. 199 OF 2023** 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 OP(C) NO. 199 OF 2023 AGAINST THE ORDER/JUDGMENT IN OS 139/2013 OF MUNSIFF MAGISTRATE COURT,MANNARKAD** ## **PETITIONER/S:** M. MUHAMMED MADANI AGED 74 YEARS SON OF MOIDEENKUTTY, RESIDING AT MANKANDATHIL HOUSE, KODIYATHUR VILLAGE, KODIYATHUR POST, KUNNAMANGALAM TALUK, KOZHIKKODE DISTRICT - 673 602 (GENERAL SECRETARY, KERALA NADVATHUL MUJAHIDEEN (KNM:02/'57), MUJAHID CENTRE, CD TOWER, ARAYIDATHUPALAM, KOZHIKKODE , PIN - 673004 BY ADVS. ABDUL JAWAD K. U.MUHAMMED MUSTHAFA A.GRANCY JOSE ## **RESPONDENT/S:** 1 AMINA AGED 82 YEARS WIFE OF (LATE) MUHAMMED, RESIDING AT CHANTHAKKUNNU, NEAR AL-SHARAF HOMOEO CLINIC, NILAMBUR POST, NILAMBUR TALUK, MALAPPURAM DISTRICT , PIN - 679329 2 SUBIDA AGED 66 YEARS WIFE OF MUHAMMED, RESIDING AT KOHINOOR SAVITHAM, THENJIPALAM POST, MALAPPURAM DISTRICT, PIN - 673636 3 SHARAFUNEESA AGED 64 YEARS WIFE OF T. M. ZIDDIQUE, RESIDING AT MAYILADI SHARAFIL, ERANJIMANGAD POST, NILAMBUR TALUK, MALAPPURAM DISTRICT , PIN - 679329 4 ABDUL MAJEED AGED 61 YEARS SON OF MUHAMMED, RESIDING AT EMARALD LOVESHORELINE, ELTHURUTHU POST, THRISSUR DISTRICT , PIN - 680611 5 SAKEENA BEGUM **OP(C) NO. 199 OF 2023** 2 AGED 57 YEARS WIFE OF ASSAN MUHAMMED, RESIDING AT SUKRUTHAM, PARAKKADAVU, TRIPPALUR, PUTHIYANGAM POST, ALATHUR, PALAKKAD DISTRICT, PIN - 678542 6 NAJUMUNEESA AGED 50 YEARS DAUGHTER OF (LATE) MUHAMMED, RESIDING AT CHANTHAKKUNNU, NEAR AL-SHARAF HOMOEO CLINIC, NILAMBUR POST, MALAPPURAM DISTRICT, PIN - 679329 7 NABEESA AGED 76 YEARS D/O.ULLATTUPARAMBIL KOYA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 8 AMINAKUTTY AGED 69 YEARS WIFE OF ULLATTUPARAMBIL ABDULLA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 9 ABDULLA KOYA AGED 50 YEARS SON OF ULLATTUPARAMBIL ABDULLA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 10 MUHAMMED SALIH AGED 45 YEARS SON OF ULLATTUPARAMBIL ABDULLA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 11 SALAHUDEEN AGED 43 YEARS SON OF ULLATTUPARAMBIL ABDULLA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 12 YOONUS AMEEN AGED 42 YEARS SON OF ULLATTUPARAMBIL ABDULLA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 13 SAHID RASI AGED 39 YEARS SON OF ULLATTUPARAMBIL ABDULLA, RESIDING AT ARAKURUSSI AMSOM DESOM, MANNARKKAD POST, MANNARKKAD , PIN - 678582 14 KUNJUMON AGED 44 YEARS **OP(C) NO. 199 OF 2023** 3 SON OF VYSYAN ABOOBACKER, RESIDING AT ARAKURUSSI AMSOM, PERIMBADARI POST, MANNARKKAD , PIN - 678762 15 MUHAMMED SHINAS AGED 23 YEARS SON OF KUNJUMON, RESIDING AT ARAKURUSSI AMSOM, PERIMBADARI POST, MANNARKKAD , PIN - 678762 16 MUHAMMED SHABIN AGED 20 YEARS SON OF KUNJUMON, RESIDING AT ARAKURUSSI AMSOM, PERIMBADARI POST, MANNARKKAD , PIN - 678762 17 FATHIMA SHARIKA AGED 21 YEARS DAUGHTER OF KUNJUMON, RESIDING AT ARAKURUSSI AMSOM, PERIMBADARI POST, MANNARKKAD , PIN - 678762 18 T.P.SAINABA AGED 60 YEARS W/O.LATE NAMBIYATH KUNJAPPA, RESIDING AT PULLASSERI, MUNDEKARAD, MANNARKKAD , PIN - 678582 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 199 OF 2023** 4 ## **JUDGMENT** The short but interesting question is whether an appeal and an original petition filed under Article 227 of the Constitution of India can be parallelly prosecuted, challenging an exparte decree. 2. The antecedent facts leading to the original petition are: (i) The respondents 1 to 6 in the original petition have filed O.S.No.139/2013 before the Court of the Munsiff, Mannarkad, against the petitioner and respondents 7 to 18 for a decree of partition. (ii) By Ext.P4 judgment, the court below has passed a preliminary decree. The court below has not considered the various legal aspects, including the maintainability of the suit. ― (iii) The petitioner the 12[th] defendant in the suit ― was set exparte. He filed I.A.No.464/2020 (Ext.P6) **OP(C) NO. 199 OF 2023** 5 and I.A.No.463/2020 (Ext.P5) to set aside the exparte decree and to condone the delay in filing Ext.P6 application, respectively. (iv) The court below, by Exts.P7 and P8 orders, dismissed Exts.P5 and P6 applications. (v) Aggrieved by Exts.P7 and P8 orders, the petitioner filed I.A.No.167/2022 (Ext.P9) to review the above orders. (vi) Although the petitioner produced all the relevant materials, by the impugned Ext.P11 order, the court below dismissed Ext.P9 application. (vii) The petitioner has filed CMA No.22/2022 before the Court of the Subordinate Judge, Ottappalam, challenging Exts.P7 and P8 orders. (viii)Ext.P11 is palpably wrong and erroneous. Hence, the original petition. **OP(C) NO. 199 OF 2023** 6 3. Heard; Sri.Abdul Jawad K., the learned Counsel appearing for the petitioner on admission. 4. In **DSR Steel (P) Ltd v. State of Rajasthan and others** [2012 KHC 4156], the Honourable Supreme Court has succinctly held thus: “14. The third situation with which we are concerned in the instant case is where the revision petition is filed before the Tribunal but the Tribunal refuses to interfere with the decree or order earlier made. It simply dismisses the review petition. The decree in such a case suffers neither any reversal nor an alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition”. ## 5. When the learned Counsel’s attention was drawn ## to the above precedent, he placed reliance on the **OP(C) NO. 199 OF 2023** 7 decision of the Honourable Supreme Court in **M/s.Thungabhadra Industries Ltd. v. Government of Andhra Pradesh** [1964 KHC 570] and contended that the Honourable Supreme Court has interpreted Order 47 Rule 1 of the Code of Civil Procedure, 1908 (in short, “Code”) by holding that there is no statutory bar under Order 47 Rule 1 of the Code, if on the date of filing the review petition, there is no appeal pending. Even if an appeal is subsequently filed, notwithstanding the pendency of the appeal, the review petition can be considered and disposed of on its merits, provided the appeal is not disposed of prior to the disposal of the review petition. 6. Thus, according to Sri. Abdul Jawad K., there is no legal impediment in the petitioner simultaneously prosecuting an appeal and a review petition in two different Courts assailing the same exparte decree. 7. Order 47 Rule 1 of the Code reads as follows: **OP(C) NO. 199 OF 2023** 8 “1. Application for review of judgment **(1) Any person considering himself aggrieved-** **(a) by a decree or Order from which an appeal is allowed, but from which no appeal has been preferred,** (b) by a decree or Order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or Order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgment to the Court which passed the decree or made the Order. (2) A party who is not appealing from a decree or Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review”. 8. A reading of Order 47 Rule 1 (a) unquestionably permits a person aggrieved by a decree or order from which an appeal is allowed, but no appeal is preferred, to file an application for review. By the interpretation given in **Thungabhadra Industries Ltd.** (supra) to the above provision, it is explicit that an aggrieved person is vested with the right, after filing a review petition, to **OP(C) NO. 199 OF 2023** 9 also file an appeal against the same decree or order, but the review petition has to be decided prior to the determination of the appeal. 9. In the case on hand, the petitioner had initially filed Ext.P9 application to review Exts.P7 and P8 orders. After the filing of Ext.P9 application, the petitioner also filed CMA No.22/2022 before the Lower Appellate Court, challenging the same Exts.P7 and P8 orders. 10. By Ext.P11 order, the court below dismissed Ext.P9 application. 11. Thus, presently, the petitioner's challenge against Exts.P7 and P8 orders is now confined in CMA No.22/2022. 12. Now, the petitioner desires to parallelly challenge Ext.P11 order through the instant original petition, purportedly as a continuance of the review petition. I hold that the said course is impermissible in law because of the prohibtion in Order 47 Rule 1 of the **OP(C) NO. 199 OF 2023** 10 Code, the law laid down by the Honourable Supreme Court in **DSR Steel (P) Ltd.** (supra) and that a right royal appeal, challenging Exts.P7 and P8 orders, is pending consideration. An original petition challenging an order dismissing a review petition cannot be treated as the continuance of the review petition, unlike an appeal. Resultantly, I am not inclined to entertain the original petition under Article 227 of the Constitution of India. Additionally, I don’t find any prejudice being caused to the petitioner by the dismissal of the original petition because his challenge against the impugned orders is surviving in CMA No.22/2022. Consequently, without prejudice to the right of the petitioner to prosecute CMA No.22/2022, this original petition is dismissed. Sd/- rkc/31.1.2023 **C.S.DIAS,JUDGE** **OP(C) NO. 199 OF 2023** 11 ## **APPENDIX OF OP(C) 199/2023** PETITIONER EXHIBITS Exhibit A TRUE COPY OF THE TITLE DEED DATED 21/05/2012 - P1 EXECUTED IN FAVOUR OF THE PETITIONER Exhibit A TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT - P2 COLLECTOR, PALAKKAD DATED 22/08/2015 Exhibit A TRUE COPY OF THE PLAINT IN O.S.NO.139/2013 ON THE - P3 FILE OF MUNSIFF MAGISTRATE COURT MANNARKKAD Exhibit A TRUE COPY OF THE JUDGMENT DATED 21/08/2018 IN - P4 O.S.NO.139/2013 Exhibit A TRUE COPY OF THE APPLICATION IN I.A.NO.463/2020 FOR - P5 CONDONATION OF DELAY FILED IN O.S.NO.139/2013 ON THE FILE OF MUNSIFF MAGISTRATE COURT, MANNARKKAD Exhibit A TRUE COPY OF THE APPLICATION IN I.A.NO.464/2020 FOR - P6 SETTING ASIDE THE EX PARTE DECREE FILED IN O.S.NO.139/2013 ON THE FILE OF MUNSIFF MAGISTRATE COURT, MANNARKKAD Exhibit A TRUE COPY OF THE ORDER DATED 19/01/2022 IN - P7 IA.463/2020 IN OS.139/2013 Exhibit A TRUE COPY OF THE ORDER DATED 19/01/2022 IN - P8 IA.464/2020 IN OS.NO.139/2013 Exhibit A TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE - P9 PETITIONER BEFORE THE MUNSIFF MAGISTRATE COURT, MANNARKKAD Exhibit A TRUE COPY OF THE PROCEEDING SHEET IN IA.167/2022 ON - P10 THE FILE OF MUNSIFF MAGISTRATE COURT, MANNARKKAD Exhibit A TRUE COPY OF THE ORDER DATED 24/11/2022 IN - P11 I.A.NO.167/2022 IN I.A NO.463 & 464 OF 2020 IN OS.NO.139/2013 ON THE FILE OF MUNSIFF MAGISTRATE COURT, MANNARKKAD