Ponnappan, Anirudhan and Chachu v. M J Mathew

1 OP(C)No.39 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 ``` ``` OP(C) NO. 39 OF 2023 ``` **`AGAINST THE ORDER/JUDGMENT` in EA No.116/2021 in EP No.271/1995 in OS No.807/1992** **`OF PRINCIPAL MUNSIFF`** ## **`COURT, CHERTHALA`** ## **`PETITIONER/S:`** ``` 1PONNAPPAN AGED 85 YEARS S/O KANNAN, PANDARAPATTATHIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DIST, PIN - 688532 2ANIRUDHAN AGED 78 YEARS S/O KANNAN, PANDARAPATTATHIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DIST., PIN - 688532 3CHACHU AGED 73 YEARS W/O ANIRUDHAN PANDARAPATTATHIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DIST., PIN - 688532 BY ADV R.AZAD BABU ``` ## **`RESPONDENT/S:`** ``` M J MATHEW AGED 60 YEARS S/O JOSEPH, MALIYIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DIST., PIN - 688532 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C)No.39 of 2023 ## **C.S DIAS,J.** **--------------------------OP(C)No.39 of 2023** **-----------------------------** ## **Dated this the 10[th] day of January, 2023.** ## **JUDGMENT** Aggrieved and displeased with Ext P6 order passed in EA No.116/2021 in EP No.271/1995 in OS No.807/1992 by the Court of the Principal Munsiff, Cherthala (Trial/Execution Court), the judgment debtors in the execution petition have filed the original petition. The respondent is the decree-holder. 2. The antecedent facts leading to Ext P6 order, are: (i) The respondent had filed OS No.807/1992 before the court below, seeking a decree for declaration of title over plaint item No.3 property and for recovery of possession. (ii) The suit was decreed on 16.3.1995. (iii) The respondent filed EP No.271/1995 (Ext P1) on 10.10.1995, to execute the decree. 3 OP(C)No.39 of 2023 (iv) The petitioners challenged the decree before the Court of the Subordinate Judge, Cherthala (Lower Appellate Court) by filing AS No.81/1995. (v) The appeal was dismissed on 30.5.2002, confirming the decree of the Trial Court. (vi) The petitioners further challenged the decrees and judgments passed by the courts below by filing SA No.532/2002 before this Court. (vii) This Court, by Ext P2 judgment dated 22.5.2019, dismissed the second appeal. (viii) During the pendency of the second appeal, the Execution Court dismissed Ext P1 execution petition by Ext P3 order. (ix) After the dismissal of the second appeal, the respondent filed EA No.116/2021 (Ext P4) before the Execution Court, under Sec.151 of the Code of Civil Procedure ( in short ‘Code’), to restore the execution petition. The second petitioner filed Ext P5 objection to Ext P4 application, inter alia, 4 OP(C)No.39 of 2023 contending that the application was barred by the limitation and the respondent cannot execute the decree of the Trial Court. (x) The Execution Court, by the impugned Ext P6 order, allowed Ext P4 application. Ext P6 is ex facie illegal and unsustainable in law. Hence the original petition. 3. Heard; Sri.Azad Babu, the learned counsel appearing for the petitioner. 4. Sri.Azad Babu reiterated the contentions in the original petition. He placed reliance on the decision of this Court in **Muhammed Kunju vs. Lancilad P.Gomez [AIR 2002 KER 74]** to drive home his contention that once decree is passed by the Appellate Court, in view of the principles of merger, only the appellate decree can be executed. Hence, the execution petition itself is not maintainable in law. Consequently, Ext P6 order is erroneous and liable to be set aside. 5 OP(C)No.39 of 2023 5. The question is whether there is any illegality in Ext P6 order. 6. The respondent had instituted the suit before the Trial Court, for a decree for declaration and recovery of possession. 7. The suit was decreed on 16.3.1995 and the respondent laid the decree to execution by filing EP No.271/1995 on 10.10.1995. 8. Subsequently, the petitioners challenged the decree in AS No.81/1995 before the Lower Appellate Court. The appeal was dismissed, confirming the decree of the Trial Court. 9. The petitioners then filed SA No.532/2002 before this Court, challenging the decrees and judgments of the courts below. 10. This Court had admitted the second appeal and stayed the execution of the decree. 11. In view of the pendency of the second appeal and the stay order passed, the Execution Court, by Ext P3 order dated 22.1.2004, closed the execution petition 6 ## OP(C)No.39 of 2023 for the time being, with the specific observations that the decree-holder can proceed with the execution petition after the stay order is vacated. 12. By Ext P2 judgment dated 22.5.2019, this Court had dismissed the second appeal confirming the judgments and decrees of the courts below. 13. After the passing of Ext P2 judgment, on the strength of the reservations made in Ext P3 order, the respondent filed Ext P4 application, to restore the execution petition. 14. The petitioners filed Ext P5 objection, inter alia, contending that the application is time barred and that the respondent has not sought to execute the appellate decrees. 15. The court below, by the impugned Ext P6 order, allowed Ext P4 application in the following manner: “7. The decree in the original suit was passed on 16/03/1995. The Judgment Debtor filed appeal before Hon'ble Sub Court and decree was confirmed in the appeal. The order in the appeal was passed on 7 OP(C)No.39 of 2023 30/05/2022. The Judgment Debtor who were the appellants filed RSA before Hon'ble High Court and obtained stay. The original Execution Petition was filed on 13/10/1995. The Execution Petition was stayed from 06/11/1997 and it was dismissed on 22.1.2014 in the light of the Stay Order by Hon'ble High Court in RSA. The contention of the Judgment Debtor was that the decree which is to be executed is the decree of the appellate court on 30/05/2022. The decree was for recovery of possession of property. By the passing of 12 years from 30/05/2002 the execution petition is barred by law. Even by the dismissal of RSA on 30/04/2019 the petition has to be filed within 30 days from the dismissal of the RSA. This petition filed under section 151 CrPC cannot be entertained as the Court cannot invoke Section 151 for restoring the Execution Petition which is barred by Law of Limitation. 8. The Judgment Debtor's contention was that there was no merger of the decree of Hon'ble Sub Court with the dismissal Order in RSA by the Hon'ble High Court. The Principle of merger has its foundation in Section 37 of the Code of Civil procedure. The decree to be executed is the decree of the first Appellate ie., Hon'ble Sub Court and the decree was passed on 30.5.2002. RSA against this decree was dismissed on 22.5.2019. The contention of the Judgment Debtor that the dismissal of RSA on default will not make the first Appellate Court's decree to be merged with the order of Hon'ble High Court doesn't find good in the light of decision of Hon'ble Supreme Court in Sheodan Singh V/s Daryao Kunwar in AIR 1966 SC 1332. By dismissal of Appeal for default the decree of the Lower Appellate court is confirmed by legal fiction and thus it merged with Order of Hon'ble High Court in RSA. A fresh period of limitation thus starts running therefrom i.e., on 22.5.2019. The Article applicable is section 136 of the Limitation Act and the decree holder is entitled to get 12 years to execute the decree from 30.5.2002. Moreover the contention of the decree holder that the dismissal of the execution petition for statistical purpose is a wrong committed by the Court and it is to be made by the Court itself has force in it. Thus the prayer of the Execution Petition found legal and allowable. 8 OP(C)No.39 of 2023 In the result, EA 116/2021 allowed. EP 271/1995 is to be restored on files”. 16. The sheet-anchor of the learned counsel appearing for the petitioners is that, as the petitioners had challenged the decree passed by the Trial Court before the Lower Appellate Court and this Court, and notwithstanding the dismissal of the appeals, the decree of the Trial Court has merged with the decrees of the Second Appellate Court and the Lower Appellate Court. Therefore, the respondent can only execute the decree passed by this Court, in view of the principles of merger. 17. In the case on hand, immediately after the decree was passed by the Trial Court, the respondent laid the decree to execution by filing E.P. 271/1995. 18. It is the petitioners who unsuccessfully challenged the decree before the Lower Appellate Court and this Court. 9 OP(C)No.39 of 2023 19. During the pendency of the Second Appeal, the Execution Court, by Ext.P3 order, closed the E.P on the ground that the decree was stayed by this Court, but reserving the right of the respondent to proceed with the Execution Petition after the stay order is vacated. 20. Undisputedly, the decree passed by the Court of the first instance - the Trial Court – has not been varied/modified/set aside. Instead, the decree has only been confirmed by the two Appellate Courts. There is also no alteration in the decree. 21. Therefore, the contention of the petitioners that the Execution Petition is not maintainable and only the decree passed by this Court in the Second Appeal can be executed is untenable and unsustainable in law. 22. The principles of merger and the question of amending the Execution Petition arises only if the decree passed by the Court at the first instance was varied/modified/reversed by the Lower Appellate Court 10 OP(C)No.39 of 2023 or this Court, which is not the situation in the instant case. 23. Therefore, I am of the definite view that there is no necessity for the respondent to amend the execution petition to incorporate the details regarding the dismissal of the appeal and the second appeal because the decree passed by the Trial Court continues to remain in tact. The present contention is raised with the ulterior motive to procrastinate the final determination of the Execution Petition. 24. The Hon’ble Supreme Court in **Rahul S Shah** **v. Jinendrakumar Gandhi and others** [(2021) 6 SCC 418] has laid down the guidelines to reduce the delay in disposal of Execution Petitions and has directed the timely implementation of orders and decrees, and further, if frivolous contentions are raised, the same has to be rejected with compensatory costs. 25. On a conspectus of the above findings and on an evaluation of the impugned order, this Court is of the definite view that the Execution Court has not 11 OP(C)No.39 of 2023 overstepped its authority or powers warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is dismissed at the threshold. SD/- sks/10.1.2023 **C.S.DIAS, JUDGE** 12 OP(C)No.39 of 2023 ## **`APPENDIX OF OP(C) 39/2023`** ``` PETITIONER EXHIBITS ``` ``` ExhibitP1 ``` ``` TRUE COPY OF EXECUTION PETITION NO. 271 OF 1995 DATED 10/10/1995 ``` ``` Exhibit P2TRUE COPY OF JUDGMENT IN S.A. NO. 532 OF 2002 OF HON. HIGH COURT OF KERALA DATED 22/5/2019 ``` ``` Exhibit P3TRUE COPY OF ORDER IN E.P NO. 271 OF 1995 OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA DATED 22/1/2004 ``` ``` Exhibit P4TRUE COPY OF E.A. NO. 116 OF 2021 FILED BEFORE THE MUNSIFF'S COURT CHERTHALA DATED 22/9/2021 ``` ``` Exhibit P5TRUE COPY OF OBJECTIONS IN E.A NO. 116 OF 2021 OF MUNSIFF'S COURT, CHERTHALA DATED 27/5/2022 FILED BY 2ND JUDGMENT DEBTOR ``` ``` Exhibit P6TRUE COPY OF ORDER IN E.A. NO. 116 OF 2021 DATED 24/9/2022 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA ```