NOORJAHAN v. AAMINA AND OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 23RD DAY OF FEBRUARY 2018/4TH PHALGUNA, 1939 **CRP.No. 156 of 2013 (B)** AGAINST THE ORDER DATED 23.3.2013 IN E.P.NO.39/2011 IN OS.NO.149/1984 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE, PALAKKAD ## REVISION PETITIONER/3RD RESPONDENT-3RD DEFENDANT NOORJAHAN, WIFE OF LATE ISMAIL, NABEESA MANZIL, JAINEMEDU, VADAKKANTHARA AMSOM, PALAKKAD. BY ADVS.SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE ## RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2 - LEGAL HEIRS OF ## DECEASED PLAINTIFF & DEFENDANTS 1 AND 2: 1. AAMINA, W/O.SULAIMAN, THOTTATHIL HOUSE, JAINEMEDU, VADAKKANTHARA POST, PALAKKAD-678 012. 2. NAZAR, S/O.SULAIMAN, DO. DO. 3. RAMLATH, D/O. SULAIMAN, DO. DO. 4. SEMINA, D/O. SULAIMAN, DO. DO. 5. AARIFA, D/O. SULAIMAN, DO. DO. 6. SHAIRA, D/O.SULAIMAN, DO. DO. 7. NISSAR, S/O. SULAIMAN, DO. DO. 8. USHAIBA, D/O. SULAIMAN, DO. DO. 9. NAZEER, S/O.SULAIMAN, DO. DO. 10. ASIYA, W/O.BABURAJ, JAINEMEDU, VADAKKATHARA AMSOM, PALAKKAD TALUK. (DIED, LRS. IMPLEADED) 11. SAKKEENA, W/O.MOIDEEN, -DO- -DO- ## ADDITIONAL RESPONDENTS 12 TO 16: 12. SRI BABUJAN, RASHEEDABHANU MANZIL, JAINEMEDU, VADAKKANTHARA, PALAKKAD - 678 012. 13. SRI ABDUL JALEEL, -DO- -DO- 14. SRI. MOHAMMAD RAFI, -DO- -DO- 15. PYARIJAN BASHEER, MACHINGATHODI HOUSE, KUMBARAKUNNU, EAST OTTAPALAM, PALAKKAD - 679101. 16. RASHEEDABHANU JALEEL, JERIN MANZIL, 31/234, HIRAN NAGAR, PUTHUPPALLY THERUVU, NOORANI, PALAKKAD - 678 004. ADDL.R12 TO R16 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 10TH RESPONDENT VIDE ORDER DATED 13.8.2013 IN I.A.NO.2304/13.. R1-R9 BY ADV. SRI.G.SHRIKUMAR (SR.) R1-R9 BY ADV. SRI.ANIL VINCENT R1-R9 BY ADV. SRI.SURAJ SHRIKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.Somarajan, J. -----------------------------------------------------C.R.P. No.156 of 2013 (B) -----------------------------------------------------Dated this the 23[rd] day of February, 2018** ## **O R D E R** Aggrieved by the order dated 23.3.2013 in E.P.No.39 of 2011 in O.S.No.149 of 1984 of the Court of the Principal Subordinate Judge, Palakkad, the judgment debtor came up with this Revision on the ground that the execution application and the order of delivery are barred by limitation as it was put in after the expiry of twelve years from the date of passing of the final decree on 10.9.1990. There is no dispute that the execution application was filed only after twelve years from 10.9.1990, but as far as item No.1 of plaint A schedule is concerned, a preliminary decree was passed by this Court in first appeal on 17.9.1991. Final decree application was filed in I.A.No.1198 of 1995 in respect of item No.1. During the pendency of the final decree application, the judgment debtor filed a review application in I.A.No.2136 of 1998 for reviewing the earlier order in I.A.No.1460 of 1988. The trial court ## **C.R.P. No.156 of 2013 (B)** :: 2 :: dismissed the review application, I.A.No.2136 of 1998, and allowed I.A.No.1198 of 1995 by the common order dated 25.10.2007. The execution application for possession of the property was filed within a period of twelve years from 25.10.2007. It was submitted that in view of the review application filed, the earlier order passed in the final decree application dated 10.9.1990 would stand as merged. As such, they will get an extended time from 25.10.2007. 2. Learned counsel appearing for the revision petitioner relied on the decision rendered in _**Manohar S/o.Shanker Nale and others v. Jaipalsing S/o.Shivlalsing Rajput and others ((2008) 1 SCC 520)** ._ But, nothing was mentioned therein with respect to the legal position, whether the earlier order passed would stand as merged in the review petition irrespective of whether it was dismissed or allowed, except a passive observation in paragraph 14 of the said judgment, which is extracted below for reference: ## **C.R.P. No.156 of 2013 (B)** :: 3 :: _“14. It is one thing to say that the respondent was entitled to file an application for review in terms of Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree.”_ 3. As regards the question of merger in an order of review, the legal position is almost settled. In _**Chandi Prasad and others v. Jagdish Prasad and others ((2004) 8 SCC 724),**_ the question of merger of trial court decree in an appellate decree alone was considered. The legal position may be different, as far as review is concerned, since the appeal is continuation of the suit, but review is not. In the case of dismissal of review application, there is hardly any scope for application of doctrine of merger. ## **C.R.P. No.156 of 2013 (B)** :: 4 :: 4. Though the lower court had passed a final decree on 10.09.1990, it was not executed till the disposal of the appeal against the order in I.A.No.1198 of 1995. R.F.A.No.443 of 2009 was filed before this Court against the order in I.A.No.1198 of 1995. The review application filed in I.A.No.2136 of 1998 for reviewing the earlier final decree passed on 10.09.1990 in respect of item Nos.2 and 3 of the plaint schedule was also dismissed by the common order dated 25.10.2007. It is thereafter the matter was taken up in R.F.A.No.443 of 2009 in continuation of A.S.No.100 of 2008 on the file of the District Court, Palakkad. E.P.No.39 of 2011 was filed on 14.01.2011. Going by the abovesaid facts, it is clear that two preliminary decrees were passed, one is by the trial court allowing the suit in part and another by the First Appellate Court by which the entire plaint schedule properties were found to be partible. These are the properties left behind by one and the very same predecessor-in-interest of the parties to the suit. As far as ## **C.R.P. No.156 of 2013 (B)** :: 5 :: partition suits are concerned, there is no application of any limitation once it was found to be partible, unless the possession became hostile to the interest of the other by ouster. The final decree proceedings will not be completed unless the same is translated into the landed property. While viewing the matter under this perspective, it is clear that translation of final decree into the landed property is a part of final decree proceedings and though it was claimed under the guise of an execution application, in effect, it is part and parcel of the final decree proceedings, hence no bar of limitation is available. It is also not advisable to direct the party for filing a separate suit for recovery of possession based on the final decree passed. On the other hand, when a final decree was passed separating the common ownership property and fixing the respective boundaries, it really amounts to a decree of separation of the common ownership and fixation of the exclusive right, title and interest over the immovable property within a defined boundary and parties to the suit or persons litigating thereunder are bound ## **C.R.P. No.156 of 2013 (B)** :: 6 :: by the decree and bound to honour the decree. A case of exclusion of right, title and interest or an act in derogation of the right of other party by ouster perfected into adverse title stands on a different footing and when there is no such ouster or an act in derogation of right, title and interest or perfection of title by adverse possession, the final decree would stand as executable and it can be translated into land, in which, no question of limitation would arise. In short, what is sought to be executed though under the guise of execution of a decree for obtaining possession of the immovable property separated is really a process with trial for passing a final decree. In other words, the suit proceedings would continue till the completion of final decree which would intake the process of separation of immovable property from joint possession into exclusive possession. The legal position may be different when the suit was filed not only for partition but also for recovery of dispossessed property wherein there would be a composite decree for partition as well as recovery of possession and in so far as a decree for recovery of ## **C.R.P. No.156 of 2013 (B)** :: 7 :: possession of property is concerned, the parties are governed by Article 136 of the Limitation Act. What makes the difference is in the former case the process of separating immovable property from joint possession into exclusive possession is continuation of the “suit in trial”. But in the latter case, the composite decree to the extent of relief of recovery of possession of immovable property and its execution cannot be brought under the purview of the “suit in trial”. 5. The very same principle was applied by a Division Bench of this Court in **Kurian George Kathanar v. K.N. Raghavan (1972 ILR Kerala 623).** So, the Revision fails. Dismissed. No order as to costs. **P. Somarajan Judge** ahz/