High Court of KeralaSingle Judge2024-01-12Dismissed; Revision Petition denied

P.P. Abdul Salam v. Jayamala

Case / Petition Number:CRP No. 391 of 2023

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2024-01-12
Court Decision / Holding: The revision petition is dismissed. There is no decree in favor of the revision petitioner and therefore no enforceable right to execute; the petition under CRP No. 391 of 2023 fails.
Final Disposition: Dismissed; Revision Petition denied

Parties to the Case

Appellants / Petitioners

P.P Abdul Salam

Respondents

Jayamala

Legal Representation & Advocates

Counsels for Petitioners

• Daisy A. Philipose
• Haridas Thaikkandy

Counsels for Respondents

• Vinod K.V.

Case Synopsis & Summary

Kerala High Court exercises its revisional jurisdiction in CRP No. 391 of 2023, challenging an order in EP 130/2023 and the underlying suit OS 405/2012. The revision petitioner, P.P. Abdul Salam, sought enforcement of findings from the 2012 suit, arguing that the court had already decided the petitioner’s undivided right over a pathway leading to the plaint schedule property and that the decree, though contested, created an executable right. The suit OS 405/2012 was ultimately dismissed in 2014, while the counter-claim was allowed, producing a mandatory injunction directing removal of soil dumped in the pathway and a prohibitory injunction against the plaintiff. Paragraph 20 of that judgment stated that the plaintiff had an undivided right to use the B schedule property as a pathway, with similar rights inter se including the executants of Ext. A2 partition; however, the judgment also held that the defendant and others had similar rights and concluded the plaintiff had no cause of action to obtain the decree prayed for. The revision petitioner argued that Section 2(2) CPC allows enforcement of such decrees, and that the proceedings should not be barred by Section 11 CPC; the respondent contended no decree existed in the petitioner’s favor. The court concluded there is no formal expression of decree in the plaintiff’s favor, and the revision fails; the petition is dismissed.

Provisions of Law Cited

Section 2(2) of the Code of Civil Procedure (CPC)Section 11 of the CPC

Legal Doctrines & Maxims

End to litigation (finality principle under Section 11 CPC)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the judgment in OS No.405/2012 includes an undivided right to use the disputed pathway as a way to the plaint schedule property, creating an executable decree in his favor. Citing Section 2(2) CPC, they argue that such adjudications fall within a decree and may be enforced; reliance on Sajan K. v. K.V. Karunakaran and Others to assert that a decree holder could enforce rights in favor of a stranger. They also invoke Section 11 CPC to argue that there should be finality to litigation and that cancellation of relief by a later suit is barred. Respondent disputes that any decree in favor of the revision petitioner exists, noting that OS 405/2012 only produced counter-claims with injunctions; thus there is no executable decree against the respondent. The argument is that the platform for fresh litigation is barred by Section 11 CPC, and the revision petition should be dismissed.

Contentions of Respondents

The respondent submits that the suit OS 405/2012 was dismissed without a decree in favor of the revision petitioner; the counter-claim’s injunctions are against the plaintiff, not a decree in his favor. The question that the petitioner seeks to enforce is not resolved by a decree but by a finding in the counter-claim; executing on a non-existent decree would be improper. The respondent also argues that Section 11 CPC should prevent any fresh action or enforcement of any since no final adjudication favors the revision petitioner. The court’s decision to dismiss the revision petition underscores that there is no formal decree available for enforcement and that reliance on a dictum like Sajan K. v. K.V. Karunakaran is not applicable.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sajan K. v. K.V. Karunakaran and Others	2015 (5) KHC 55	Mentioned Only	Cited by counsel to illustrate the possibility of enforceable decrees in favor of a stranger, but the court did not adopt this authority to grant relief.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against P.P. Abdul Salam v. Jayamala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945** **CRP NO. 391 OF 2023** **IN O.S. NO.405/2012 OF PRINCIPAL MUNSIFF'S COURT, KANNUR EP 130/2023 OF PRINCIPAL MUNSIFF COURT, KANNUR** **REVISION PETITIONER(S)/PETITIONER/PLAINTIFF/COUNTER CLAIM RESPONDENT:** P.P.ABDUL SALAM AGED 65 YEARS, S/O EBRAHIM KUNHI HAJI, BUSINESS, RESIDING AT "KENZ",KANATHOOR, SOUTH WARD, OLD POST OFFICE, KANNUR DISTRICT, PIN – 670001. BY ADVS. DAISY A.PHILIPOSE HARIDAS THAIKKANDY ## **RESPONDENT(S)/RESPONDENT/DEFENDANT/COUNTER CLAIM PETITIONER:** JAYAMALA FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER, NO OCCUPATION, RESIDING AT KANATHOOR, SOUTH WARD, OLD POST OFFICE, , KANNUR DISTRICT, PIN – 670001. BY ADV VINOD K.V. **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.R.P.NO.391 OF 2023** **==> picture [37 x 9] intentionally omitted <==** **==> picture [76 x 9] intentionally omitted <==** _**Dated this the 12[th] day of January, 2024**_ **The revision petitioner herein is the petitioner in E.P. No.130/2023, who was the plaintiff in O.S. No.405/2012. By order dated 02.11.2023, the execution petition preferred by the revision petitioner was dismissed by the learned Munsiff, Kannur, holding that the revision petitioner is not the decree holder in the decree, which was sought to be executed.** **2. Heard the learned counsel for the petitioner and the respondent. Learned counsel for the petitioner submits that the suit, O.S.No.405/2012, was preferred by the revision petitioner herein and the same was dismissed on 22.11.2014. In the said** **C.R.P.NO.391 OF 2023** **==> picture [37 x 9] intentionally omitted <==** **suit, the respondent herein had filed a counter claim, which was allowed. Learned counsel submits that the dispute is with respect to a pathway and the revision petitioner's right over the pathway has already been conclusively decided in the judgment in O.S.No.405/2012. In this regard, learned counsel invited the attention of this Court to paragraph No.20 (towards the end), to point out that there is a finding to the effect that the plaintiff has got undivided right over the plaint B schedule property (the pathway in question), in order to use the same as a way to the plaint schedule property. Based on this finding, learned counsel submits that there is an executable decree in favour of the revision petitioner. It was submitted that the respondent herein had dug the disputed pathway to an extent of 75 cms., so as to prevent the plaintiff from using the same, in which circumstances, the plaintiff (revision petitioner** **C.R.P.NO.391 OF 2023** **==> picture [37 x 9] intentionally omitted <==** **herein) filed the subject E.P., seeking enforcement of the findings in her favour in the decree in O.S.No.405/2012. It is order dated 02.11.2023, which dismissed that E.P., under challenge herein. Learned counsel, relying upon Section 2(2) of the Code of Civil Procedure, submits that the rights of the plaintiff in O.S.No.405/2012 (the revision petitioner herein) over the disputed pathway has been conclusively decided by the court and therefore, the revision petitioner is entitled to enforce the same. Learned counsel also pointed out that if the revision petitioner is to prefer a fresh suit on the issue, the same will be hit by Section 11 of the C.P.C. The purpose behind Section 11 that there should be an end to litigation was also highlighted. Learned counsel relied on a judgment of this Court in** _**Sajan K. v. K.V. Karunakaran and Others [2015 (5) KHC 55]**_ **to point out that, if there is an enforceable decree in** **C.R.P.NO.391 OF 2023** **==> picture [37 x 9] intentionally omitted <==** **favour of a stranger, then he comes under the definition of decree holder and that he can execute the same.** **3. Refuting these contentions, learned counsel for the respondent submits that the suit, O.S. No.405/2012, preferred by the revision petitioner herein was dismissed and no decree was granted in favour of the revision petitioner, so as to enable him to execute the same. What was decreed is a counter claim, whereby there was a mandatory and prohibitory injunction as against the plaintiff in that suit, who is the revision petitioner herein. Learned counsel also pointed out that the allegations with respect to digging of the pathway is a new cause of action, based up on which the revision petitioner ought to have preferred a new suit.** **C.R.P.NO.391 OF 2023** **==> picture [37 x 9] intentionally omitted <==** **4. Having heard the learned counsel appearing on both sides, this Court finds no merit, whatsoever, in the instant C.R.P. A perusal of the judgment n O.S.No.405/2012 would indicate that the suit for injunction preferred by the revision petitioner herein has been dismissed; and that the counter claim sought for by the respondent herein has been allowed. A mandatory injunction was granted against the plaintiff (revision petitioner), directing removal of the soil, which was dumped in the disputed pathway, which was followed by a prohibitory injunction restraining the plaintiff from doing any act in the counter claim schedule property, which is detrimental to the defendant's right. It is true that in paragraph No.20 there is a finding that the plaintiff has got undivided right over plaint B schedule property so as to use the same as a way to the plaint schedule property. However, the said finding is followed by a finding** **C.R.P.NO.391 OF 2023** ..7.. **that the defendant and other executants in Ext.A2 partition deed are also having similar rights. Paragraph No.20 ends with a specific finding that the plaintiff has no cause of action and that the plaintiff is not entitled to get a decree of injunction, as prayed for. The issue framed as regards the plaintiff's entitlement for the relief has been answered thus, negating the relief sought for. Needless to say that there is no decree in favour of the revision petitioner/plaintiff. As such, the revision petitioner cannot seek execution of the decree in O.S.No.405/2012, which is wholly in favour of the defendant therein. The contention of the learned counsel canvassed on the definition of decree as per Section 2(2) of the C.P.C., also cannot be accepted. The rights which are concluded has to be formally expressed going by Section 2(2). When a particular relief is sought for in a suit and such suit is dismissed without granting the** **C.R.P.NO.391 OF 2023** **==> picture [37 x 9] intentionally omitted <==** **same, it cannot be said that there is a formal expression of an adjudication in favour of the plaintiff, conclusively determining the rights of the parties. The contentions of the petitioner based on Section 11 of the C.P.C. is not relevant to be answered now, which will come into pay only in case the petitioner choose to file a subsequent suit. The said contention is premature.** **In the light of the above discussion, the C.R.P. fails and the same is dismissed.** **Sd/-** **C. JAYACHANDRAN JUDGE** Skk//17.01.2024