N. VIDHYADARAN v. SUSHAMA and OTHERS (WP(C) No.13109 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933** ## **WP(C).No. 13109 of 2010(O)** **---------------------------------------** **OS.440/1992 OF SUB COURT, IRINJALAKUDA** **....................** ## **PETITIONER(S):** - **-----------------------** ## **N. VIDHYADARAN, AGED 44, S/O.NARAYANAN, CHIOTTEZHASTH HOUSE, AMBALLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.K.B.PRADEEP** ## **RESPONDENT(S):** **------------------------** **1. SUSHAMA, W/O.RAVEENDRAN, MOOZHIYIL HOUSE MANNAMPETTA, AMBALLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER ANURUDAN.** **2. SUSHAMA, W/O.RAVEENDRAN, MOOZHIYIL HOUSE, MANNAMPETTA DESOM, AMBALLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **3. SHANMUGHANARAYANAN, S/O.KOCHAKKAN, CHITTEZHATH HOUSE, AMBALLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **R1 & R2 BY ADV. SRI.S.VINOD BHAT. R3 BY ADV. SRI.C.S.ABDUL SAMMAD, SRI.V.D.BALAKRISHNA KARTHA.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **WP(C).No. 13109 of 2010(O)** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE APPLICATION I.A. NO.914/2010 DATED 05/04/2010 IN A.S. NO.131 OF 2010 OF THE DISTRICT COURT, THRISSUR.** **EXT.P2: COPY OF THE APPLICATION E.A. NO.657/2010 DATED 08/04/2010 IN E.P. NO.287/2007 IN O.S. NO.440/1992 OF THE SUB COURT, IRINJALAKUDA.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.13109 of 2010 -------------------------------------Dated this the 10[th] day of November, 2011.** ## **JUDGMENT** This petition is in challenge of Exts.P3 to P5, orders passed by the learned Principal Sub Judge, Irinjalakuda on E.A.Nos.352 of 2010, 656 of 2010 and 657 of 2010 in E.P.No.287 of 2007 in O.S.No.440 of 1992. The 3[rd] respondent filed that suit for specific performance of an agreement allegedly executed in his favour by respondents 1 and 2 in the year, 1991 in respect of 46 cents. The 3[rd] respondent claimed that he is in possession of the property pursuant to the agreement for sale and hence his possession is protected under Section 53A of the Transfer of Properties Act (for short, “the Act”). Respondents 1 and 2 resisted the suit and made a counter claim for recovery of possession of 10 cents (allegedly forming part of 46 cents) on the allegation that 3[rd] respondent has trespassed into the said ten cents. Though learned Sub Judge refused to grant a decree for specific performance of the agreement allegedly executed by respondents 1 and 2, 3rd respondent was given a decree for recovery of advance money and the counter claim was decreed allowing respondents 1 and 2 to recover possession of the said ten cents from the 3rd respondent. 3rd respondent preferred A.S.No.347 of 2000 but failed in his attempt to unsettle the decree for recovery of possession. He thereafter filed an application for review - R.P.No.841 of 2007 claiming that 5 ½ cents which is included in the ten cents allowed to be recovered by respondents 1 and 2 has **WP(C)No.13109/2010** 2 already been settled by 3[rd] respondent in favour of his son, the petitioner as per a settlement deed of the year, 1990 (ie., even before the alleged execution of the agreement for sale in the year 1991). That review petition was dismissed holding that if aggrieved, it is open to the petitioner to take necessary steps in the matter. Petitioner filed O.S.No.567 of 2007 in the same court for a declaration that the decree on the counter claim in O.S.No.440 of 1992 is not binding on him and prayed for a decree for prohibitory injunction. The suit was dismissed against which petitioner filed A.S.No.131 of 2010 with I.A.No.914 of 2010 for an order of injunction against petitioner being evicted in execution of the decree in O.S.No.442 of 1992. The said appeal and application are pending consideration before the learned District Judge, Thrissur. 2. In the meantime, respondents 1 and 2 filed E.P.No.287 of 2007 to execute the decree on the counter claim in O.S.No.440 of 1992 and get possession of the ten cents referred to therein. Executing court ordered delivery on 23.02.2010. It would appear that delivery was obstructed by petitioner and thereon respondents 1 and 2 filed E.A.No.352 of 2010 to effect delivery with police assistance. Petitioner filed E.A.No.656 of 2010 in the executing court for stay of delivery (since his prayer for injunction was not considered by the learned District Judge, Thrissur in A.S.No.131 of 2010). Since there was no plan appended to the decree on the counter claim in O.S.No.440 of 1992 respondents 1 and 2 filed E.A.No.657 of 2010 for appointment of a private surveyor to assist the Amin in executing the decree on the counter claim. **WP(C)No.13109/2010** 3 3. Learned Sub Judge allowed E.A.No.352 of 2010, without notice to the petitioner (as he claims) by a monosyllabic order “allowed”. E.A.No.656 of 2010 was dismissed holding that the executing court has no power to grant stay and that since A.S.No.131 of 2010 is pending, remedy of petitioner is to seek appropriate relief in that appeal. E.A.No.657 of 2010 was allowed and private surveyor was appointed. Thus, Exts.P3 and P5, orders are under challenge. Certain other reliefs are also prayed for in this Writ Petition such as that learned Sub Judge may be directed to issue a copy of the order on E.A.Nos.352 of 20109, 656 of 2010 and 657 of 2010 and for a direction to the learned District Judge to expedite disposal of I.A.No. 914 of 2010 in A.S.No.131 of 2010. 4. Learned counsel for petitioner submits that though subsequent to the filing of the Writ Petition, petitioner has been issued with copy of orders on the execution applications referred to above which has been produced and marked as Exts.P3 to P5 in this Writ Petition and hence, that prayer has become redundant. It is contended by the learned counsel that though E.A.No.352 of 2010 is one filed under Order XXI, Rule 97 of the Code of Civil Procedure (for short, “the Code”) in so far as the request is to remove the obstruction caused by petitioner, that application was allowed by a single line order without referring to the facts of the case or without notice to the petitioner and hence the order is not sustainable. Learned counsel requested that the matter may be remitted to the executing court for fresh decision after hearing petitioner as well. Learned counsel also requested that learned District Judge may be directed to expedite **WP(C)No.13109/2010** 4 disposal of I.A.No.914 of 2010 and A.S.No.131 of 2010. Learned counsel for the 3[rd] respondent has supplemented the contentions raised by petitioner. 5. Learned counsel for respondents 1 and 2 contended that the challenge to the order on E.A.No.352 of 2010 is not sustainable since that being an application preferred under Rule 97 of Order XXI of the Code, its adjudication comes under Rule 98, it is an order coming under Rule 103 and hence appealable as if it were a decree. Since statutory remedy by way of appeal is available, this Court is not required to interfere under Article 227 of the Constitution, it is contended. So far as the claim of petitioner as regards the 5 ½ cents allegedly settled in his favour by the 3[rd] respondent is concerned, it is contended that the said 5 ½ cents forms part of property covered by the agreement for sale referred in O.S.No.440 of 1992 in respect of which the 3[rd] respondent had claimed possession and protection of Sec.53A of the Act, that claim having not been upheld in O.S.No.440 of 1992 and A.S.No.347 of 2000, claim of petitioner for 5 ½ cents out of the said 46 cents of which ten cents which is the subject matter of the counter claim in O.S.No.440 of 1992 is not sustainable. 6. So far as appealability of the order on E.A.No.352 of 2010 is concerned, learned counsel for petitioner has also not disputed that it is appealable for the reason above stated. Then the question is whether at this stage this Writ Petition has to be dismissed directing petitioner to invoke the statutory remedy of appeal. I must bear in mind that the Writ Petition was filed **WP(C)No.13109/2010** 5 on 09.04.2010 and, I am requested to dismiss the Writ Petition for the reason of availability of remedy by way of statutory appeal when this matter is heard on 10.11.2011. It would appear that the objection was raised by the learned counsel for respondents 1 and 2 at some prior occasion as well. But the Writ Petition was not disposed of based on that contention. Directing petitioner to invoke the statutory remedy by way of appeal at this stage would only result in further delay since necessarily the appeal has to be accompanied by an application to condone the delay and the appellate court will be required to decide on that application first before considering the appeal. There is yet another reason which restrains me from directing petitioner to avail the statutory remedy of appeal - that the order passed by the learned Sub Judge on E.A.No.352 of 2010 (Ext.P3, order) is a monosyllabic order, “allowed” and that too without reference to the petition. The Supreme Court in **Assistant** ## **Commissioner, Commercial Tax Department, Works Contract** ## **and Leasing, Kota v. Shukla and Brothers ((2010) 4 SCC 785)** has held that reasons are the soul of orders and that non-recording of reasons could lead to dual infirmities ; firstly, it may cause prejudice to the affected party and secondly and more particularly it may hamper proper administration of justice. Though, with respect to an administrative order, it is held in **Breen v.** ## **Amalgamated Engineering Union and others ((1971) 2 Q.B. 175** at page 191) that giving of reasons is one of the fundamentals of good **WP(C)No.13109/2010** 6 governance. There is no reason why, particularly in the light of the decision of the Apex Court referred above, the said principle should not apply to orders passed by judicial bodies as well. In the circumstance, Ext.P3, order on E.A.No.352 of 2010 is prima facie unsustainable and hence it is within the power of this Court under Article 227 of the Constitution to interfere. 7. E.A.No.352 of 2010 being an application under Rule 97 of Order XXI of the Code though, it is not necessary in every case to issue notice to the obstructor, having regard to the facts and circumstances of the case on hand I am inclined to think that it was appropriate to issue notice to the petitioner. Hence executing court has to consider E.A.No.352 of 2010 after hearing petitioner also as to his claim over 5 ½ cents covered by the settlement deed of 1990. In the view of that finding of mine, E.A.No.656 of 2010 has to be allowed with respect to that much extent of property allegedly forming part of ten cents referred to in the decree on the counter claim. In the light of what I have stated above and since a private surveyor is being appointed to assist the Advocate Commissioner who was appointed on the trial side in O.S.No.440 of 1992 there is no reason to interfere with the order on E.A.No.657 of 2010. Resultantly this Writ Petition is allowed in part as follows: i. Ext.P3, order on E.A.No.352 of 2010 in E.P.No.287 of 2007 in O.S.No.440 of 1992 of the court of learned Sub Judge, Irinjalakuda is set aside. E.A.No.352 of 2010 is remitted to the said court for fresh decision after hearing petitioner as well. **WP(C)No.13109/2010** 7 ii. Ext.P4, order on E.A.No.656 of 2010 is set aside and that application will stand allowed until disposal of E.A.No.352 of 2010 to the extent it concerned the 5 ½ cents over which petitioner is claiming title and possession as per the settlement deed of the year, 1990. iii. To the extent it concerned Ext.P5, order there is no reason to interfere with. iv. It is made clear that this judgment or the above directions will not stand in the way of the executing court proceeding with execution of the decree on the counter claim excluding the 5 ½ cents claimed by petitioner as per settlement deed of the year, 1990. It will be open to the executing court to direct the private surveyor and the Advocate Commissioner to identify the counter claim decree schedule property, excluding the 5 ½ cents over which petitioner is claiming title and possession as per the settlement deed of the year, 1990 and allow delivery of possession of the property excluding the said 5 ½ cents. v. Parties shall appear before the executing court in E.A.No.352 of 2010 on 30.11.2011. The executing court shall conduct the enquiry on E.A.No.352 of 2010 after giving petitioner opportunity to file his counter if any and after recording evidence if any both sides may let in. vi. Petitioner is permitted to request the learned District Judge, Thrissur to expedite disposal of I.A.No.914 of 2010 and A.S.No.131/2010. **WP(C)No.13109/2010** 8 vii. It is also made clear that the finding entered by the executing court as regards identity of the property in Ext.P5 shall not stand in the way of enquiry on E.A.No.352 of 2010. **THOMAS P.JOSEPH, Judge.** **cks**