Poly v. Sidharthan, Boban & Sindhu (OP(C) No. 1483 of 2023)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT ## THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945 ## OP(C) NO. 1483 OF 2023 AGAINST THE ORDER/JUDGMENT IN OS 4011/2017 OF PRINCIPAL MUNSIFF COURT, THRISSUR CMA 116/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -IV, THRISSUR / III ADDITIONAL MACT, THRISSUR ## PETITIONER: POLY, AGED 58 YEARS, WESTERN BAZAR ARANATTUKARA VILLAGE AND DESOM, ARANATTUKARA PO, ARANATTUKARA SO THRISSUR, PIN - 680618 BY ADVS.DEEPU LAL MOHAN ATHUL LAL ## RESPONDENTS: - 1 SIDHARTHAN, AGED 69 YEARS C/O KOPPARA VEETTIL UNNIKRISHNAN VENKIDANGU VILLAGE CHAVAKKAD TALUK, THRISSUR, PIN - 680669 - 2 BOBAN, AGED 62 YEARS SON OF CHAKKALAKAL JOSE, PALAKKAL DESOM, PALISSERY VILLAGE THRISSUR TALUK, PIN - 680027 - 3 SINDHU, AGED 52 YEARS - FLAT NO. 4H CHELOOR TOWERS POOTHOLE VILLAGE AND DESOM THRISSUR TALUK, PIN – 680618 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C)No.1483 of 2023 :: 2 :: ## JUDGMENT Dated this the 24[th] day of July 2023 The original petition is filed assailing Ext.P27 order passed by the Court of the Additional District Judge-IV, Thrissur (lower Appellate Court) in I.A.5/2023 in CMA 116/2022. 2. The relevant factual matrix for the determination of the original petition are: (i) The petitioner is the third respondent and respondents in the original petition are the appellant and respondents 1 and 2 in the above appeal. (ii) The second respondent had filed O.S.4011/17 before the Court of the Principal Munsiff, Thrissur (Trial Court) against the respondents 1 and 3 for a decree of specific performance. (iii) The suit was decreed by Ext.P1 judgment and Ext.P2 decree on 29.11.2018. ## O.P.(C)No.1483 of 2023 :: 3 :: (iv) As the respondents 1 and 3 did not execute the sale deed, the second respondent deposited the balance sale consideration and filed Ext.P3 application, under Section 28(3) of the Specific Relief Act, 1963 (in short ‘Act’), to get the sale deed executed through the process of law. The second respondent also filed Ext.P4 execution petition, to realize the cost of the decree. (v) Later, the petitioner bonafidely purchased Ext.P2 decree by Ext.P5 assignment deed. Then, the petitioner filed Ext.P6 application seeking leave to prosecute Ext.P3 application, which was allowed by Ext.P7 order, by the Trial Court. (vi) While so, the first respondent filed Exts.P12 and P13 applications before the Trial Court, to set aside the ex-parte decree and also to condone the delay in filing the said application. The petitioner was not made a party to the above applications. But, the petitioner got himself impleaded in Exts.P12 and P13 applications. (vii) The Trial Court, by Ext.P21 common order, dismissed Exts.P12 and P13 applications. ## O.P.(C)No.1483 of 2023 :: 4 :: (viii) Challenging Exts.P21 order, the first respondent has filed C.M.A.116/22 before the lower Appellate Court. Subsequently, the first respondent also filed Ext.P25 application to stay further proceedings in the suit. (ix) The lower Appellate Court, by the impugned Ext.P27 order, allowed Ext.P25 application and has stayed further proceedings in O.S.4011/2017. (x) Ext.P27 is palpably wrong and erroneous. Hence, the original petition. 3. Heard Sri.Deepu Lal Mohan, the learned counsel for the petitioner on admission. 4. Sri.Deepu Lal Mohan vehemently argued that the powers of the appellate court under Order XLI Rule 5 of the Code of Civil Procedure is confined to only stay the execution proceedings. Ext.P3 application filed by the second respondent and now being prosecuted by the petitioner is an application filed under Section 28(3) of the Act, which is not an execution proceedings under ## O.P.(C)No.1483 of 2023 :: 5 :: Order XXI of the Code of Civil Procedure, but only a continuation of the original proceedings. Therefore, placing reliance on the decision of this Court in Leela.C.J. v. Life Insurance Corporation of India [2023 (1) KHC 672], he contended that Ext.P27 order passed by the lower Appellate Court, staying further proceedings in O.S.4011/17 is untenable and is liable to be set aside. 5. The point is whether there is any illegality in Ext.P27. 6. It is not in dispute that the Ext.P2 decree is an ‘ex-parte decree’. Although the first respondent had filed an application to set aside Ext.P2 decree, the same was dismissed by the trial court by Ext.P21 common order. 7. Assailing Ext.P21 common order, the first respondent has filed CMA 116/22 before the lower appellate court. ## O.P.(C)No.1483 of 2023 :: 6 :: 8. The lower appellate court, after appreciating the rival contentions in Ext.P25 application and Ext.P26 counter affidavit, has deemed it necessary and proper to stay further proceedings pursuant to Ext.P2 decree, to preserve the subject matter in the suit. It is by exercising its discretionary powers that Ext.P27 order has been passed staying further proceedings, pursuant to Ext.P2 decree, till a final decision is taken in CMA 116/2022. 9. The contention of the learned counsel for the petitioner that this Court in Leela.C.J. (supra) has held that only the execution of decree can be stayed, invoking the powers under Rule 5 of Order 41 of Code of Civil Procedure, is untenable. This Court has in unequivocal terms held that the powers under the said provision will operate only against execution proceedings or steps, if any, taken to get the decree/order executed. ## O.P.(C)No.1483 of 2023 :: 7 :: 10. A reading of the affidavit filed in support of Ext.P25 application will substantiate that the first respondent has sought to stay further proceedings pursuant to Ext.P2 decree passed in O.S.4011/2017. 11. Although Section 28 of the Act is not akin to a proceeding under Order 21 of the Code of Civil Procedure, necessarily, the petitioner has sought to get possession of the property, which is a further proceeding subsequent to Ext.P2 decree. The decree itself is called in question in the appeal. Thus, the lower Appellate Court has thought to defer further proceedings pursuant to Ext.P2 decree, until a decision is taken in the appeal. If at all Ext.P2 decree is set aside, necessarily all proceedings including the application filed by the petitioner would no longer survive. 12. Viewed in the above legal and factual background, especially since the lower Appellate Court ## O.P.(C)No.1483 of 2023 :: 8 :: has not expressed anything on the merits of the decree, I do not find any error in Ext.P27 order warranting its interference by exercising the supervisory powers of this Court under Article 227 of the Constitution of India. 13. It is trite; the power of superintendence of this Court under Article 227 of the Constitution of India is to be sparingly exercised and in exceptional cases, to keep the courts of the District Judicature/Tribunals within their bounds of authority and not to sit in appeal over their decisions. 14. At the cost of repetition, this Court reiterates that Ext.P27 is an order that has been passed by the lower Appellate Court by exercising discretionary powers. Thus, I am not inclined to interfere with such discretionary power, which I find is reasonable and justifiable. 15. After arriving at the said conclusion, the learned counsel appearing for the petitioner submitted O.P.(C)No.1483 of 2023 :: 9 :: that, notwithstanding the confirmation of Ext.P27 order, this Court may direct the lower Appellate Court to consider and dispose of CMA 116/2022, expeditiously. I accept the said submission. Resultantly, confirming Ext.P27 order, I direct the Court of the IVth Additional District Judge, Thrissur to consider and dispose of CMA 116/2022, in accordance with law and as expeditiously as possible, after affording the petitioner and the respondents an opportunity of being heard. Sd/C.S.DIAS JUDGE jes O.P.(C)No.1483 of 2023 :: 10 :: ## APPENDIX OF OP(C) 1483/2023 ## PETITIONER’S EXHIBITS: - Exhibit-P1 THE PHOTOCOPY OF JUDGMENT DATED 29-11-2018 IN O.S.NO.4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR - Exhibit-P2 THE PHOTOCOPY OF DECREE DATED 29-11-2018 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR - Exhibit-P3 THE PHOTOCOPY OF I.A. NO. 01/2020 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR - Exhibit-P4 THE PHOTOCOPY OF THE EXECUTION PETITION FILED BY THE DECREE HOLDER AS E.P. NO. 1281/2020 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR - Exhibit-P5 THE PHOTOCOPY OF DEED OF ASSIGNMENT NO. 68/2020 DATED 17-11-2020 OF OLLUKARA SUB REGISTRAR'S OFFICE - Exhibit-P6 THE PHOTOCOPY OF I.A. NO. 06/2020 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR - Exhibit-P7 THE PHOTOCOPY OF ORDER DATED 18-12-2020 OF THE PRINCIPAL MUNSIFF COURT, THRISSUR IN I.A. NO. 06/2020 IN O.S. NO. 4011/2017 - Exhibit-P8 THE PHOTOCOPY OF E.A. NO. 1633/2020 IN E.P. NO. 1281/2020 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR - Exhibit-P9 THE PHOTOCOPY OF ORDER DATED 18-12-2020 OF THE PRINCIPAL MUNSIFF COURT, THRISSUR IN E.A. NO. 1633/2020 IN E.P. NO. 1281/2020 IN O.S. ## O.P.(C)No.1483 of 2023 :: 11 :: NO. 4011/2017 - Exhibit-P10 THE PHOTOCOPY OF ORDER DATED 19-02-2021 OF THE PRINCIPAL MUNSIFF COURT, THRISSUR IN E.P. NO. 1281/2020 IN O.S. NO. 4011/2017 - Exhibit-P11 THE PHOTOCOPY OF C.A. NO. 43/2021 IN E.P. NO. 1281/2020 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P12 THE PHOTOCOPY OF I.A. NO. 9/2021 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P13 THE PHOTOCOPY OF I.A. NO. 10/2021 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P14 THE PHOTOCOPY OF I.A. NO. 11/2021 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P15 THE PHOTOCOPY OF I.A. NO. 12/2021 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P16 THE PHOTOCOPY OF ORDER DATED 11-03-2022 OF THE PRINCIPAL MUNSIFF COURT, THRISSUR IN I.A. NO. 11/2021 IN O.S. NO. 4011/2017. - Exhibit-P17 THE PHOTOCOPY OF ORDER DATED 11-03-2022 OF THE PRINCIPAL MUNSIFF COURT, THRISSUR IN I.A. NO. 12/2021 IN O.S. NO. 4011/2017. - Exhibit-P18 THE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 14-03-2021 FILED BY THE THIRD RESPONDENT IN I.A. NO. 9/2021 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P19 THE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 1403-2021 FILED BY THE THIRD RESPONDENT IN I.A. ## O.P.(C)No.1483 of 2023 :: 12 :: NO. 10/2021 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P20 THE PHOTOCOPY OF JUDGMENT DATED 30-08-2022 OF THIS HON'BLE COURT IN O.P.(C) NO. 1609/2022. - Exhibit-P21 THE PHOTOCOPY OF COMMON ORDER DATED 1810-2022 OF THE PRINCIPAL MUNSIFF COURT, THRISSUR IN I.A. NO. 9/2021 & I.A. NO. 10/2021 IN O.S. NO. 4011/2017. - Exhibit-P22 THE PHOTOCOPY OF APPEAL MEMORANDUM IN C.M.A NO. 116/2022 ON THE FILES OF THE IV ADDITIONAL DISTRICT JUDGE, THRISSUR. - Exhibit23 THE PHOTOCOPY OF SALE DEED NO. 1304/2023 DATED 30-03-2023 OF THRISSUR SUB REGISTRAR'S OFFICE. - Exhibit-P24 THE PHOTOCOPY OF I.A. NO. 07/2023 IN O.S. NO. 4011/2017 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. - Exhibit-P25 THE PHOTOCOPY OF I.A. NO. 05/2023 IN C.M.A NO. 116/2022 ON THE FILES OF THE IV ADDITIONAL DISTRICT JUDGE, THRISSUR. - Exhibit-P26 THE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 25-05-2023 FILED BY THE 3RD RESPONDENT IN I.A. NO. 05/2023 IN C.M.A NO. 116/2022 ON THE FILES OF THE IV ADDITIONAL DISTRICT JUDGE, THRISSUR. - Exhibit-P27 THE PHOTOCOPY OF ORDER (INCORRECTLY MENTIONED AS JUDGMENT) DATED 25-05-2023 IN I.A. NO. 05/2023 IN C.M.A NO. 116/2022 ON THE FILES OF THE IV ADDITIONAL DISTRICT JUDGE, THRISSUR.