Priya S. Babu and Others v. Sarojini and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` FRIDAY, THE 6[TH] DAY OF JANUARY 2023 / 16TH POUSHA, 1944 ``` ## `OP(C) NO. 2559 OF 2022` ``` OS 865/1989 OF PRINCIPAL MUNSIFF,ALAPPUZHA ``` ## `PETITIONERS:` ``` 1PRIYA S. BABU AGED 53 YEARS W/O SURESH BABU, NARAYANI VILLA, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 2SOORAJ S. BABU AGED 30 YEARS S/O SURESH BABU, NARAYANI VILLA, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 3SREERAJ S. BABU AGED 20 YEARS S/O SURESH BABU, NARAYANI VILLA, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 ``` ``` BY ADVS.V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S. ``` ## `RESPONDENTS:` ``` 1SAROJINI AGED 65 YEARS D/O PADMAKSHI, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU PUTHENPURAYIL, PUNNAPRA VILLAGE, PARAVUR MURI, ``` ## `O.P.(C)No.2559/2022` ## `-:2:-` ``` AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 ``` ``` 2SUPRABHA AGED 30 YEARS D/O PADMAKSHI, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU PUTHENPURAYIL, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 3AMBIKA AGED 28 YEARS D/O PADMAKSHI, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU PUTHENPURAYIL, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 4LAKSHMIKUTTY AGED 82 YEARS D/O. ANANTHA, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 5UNNIKRISHNAN AGED 60 YEARS S/O LAKSHMIKUTTY, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 6VALLY AGED 54 YEARS D/O. LAKSHMIKUTTY, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 7REMA AGED 44 YEARS ``` ``` O.P.(C)No.2559/2022 ``` ``` -:3:- ``` ``` D/O. LAKSHMIKUTTY, NADUVILE MUNDUKATTU HOUSE, KONKINIPARAMBU, PUNNAPRA VILLAGE, PARAVUR MURI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688004 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.2559/2022 ``` ``` -:4:- ``` Dated this the 6[th] day of January,2023 ## **J U D G M E N T** Confronted with Ext P12 order passed in E.A.No.201/2022 in E.A.No.135/2019 in E.P.No.15/2018 in O.S.No.865/1989 by the Court of the Principal Munsiff, Alappuzha, the petitioners 2 to 4 in the above application have filed the original petition. The respondents are the counter petitioners 2 to 4 and 6 to 9 before the court below. 2. The concise case of the petitioners, leading to Ext P12 order, is that: - - (i) The predecessor in interest of the petitioners ― - late Suresh Babu had filed E.A.No.135/2019 (Ext P1) under Section 94 read with Order 21 Rules 97 and 98 of the Code of Civil Procedure,1908 (in short, ‘Code’) against the respondents. - (ii) Suresh Babu died during the pendency of the application, and the petitioners got themselves ``` O.P.(C)No.2559/2022 ``` ``` -:5:- ``` impleaded as additional petitioners 2 to 4. Even though the counter petitioners 1 and 5 have died, they are formally arrayed in the application. The counter petitioners 1 to 3 have resisted Ext P1 application by filing Ext P2 objection. - (iii) Ext P3 decree sought to be executed is an ex-parte decree. Ext C4(a) survey plan forms a part of the decree. - (iv) The petitioners and Suresh Babu were not parties in the suit. Suresh Babu had purchased an extent of 2.58 ares of property, as per Ext P4 sale deed, from the counter petitioners 4 to 6. The said property is described in Ext C4 (a) plan and is scheduled in the claim petition. - (v) The petitioners have filed E.A.No.121/2022 (Ext P8) to hold a full-fledged trial as stipulated under the Code. The respondents 1 to 3 have resisted the application by filing Ext P9 written objection. Then, the petitioners filed E.A.No.201/2022 (Ext P10), to appoint an ``` O.P.(C)No.2559/2022 ``` ## `-:6:-` Advocate Commissioner, to obtain a plan, with the assistance of a Surveyor. The said application was also opposed by the respondents 1 to 3 through Ext P11 counter statement. The court below, by the impugned Ext P12 order, has dismissed Ext P10 application. - (vi) Ext P12 is patently erroneous, arbitrary and illegal. Hence, the original petition. 3. Heard; Sri. V.N. Sankarjee, the learned Counsel appearing for the petitioners and Sri. K.S.Hariharaputhran, the learned Counsel appearing for the respondents. 4. Sri. V.N. Sankarjee reiterated the contentions in the original petition and contended that the court below has gone wrong in dismissing Ext P10. The petitioners’ right to establish their case has been peremptorily rejected by the impugned Ext P12 order, ``` O.P.(C)No.2559/2022 ``` ``` -:7:- ``` which warrants to be interfered with by this Court. 5. Sri. K.S.Hariharaputhran vehemently opposed the original petition and argued that the petitioners are the successors in interest of Suresh Babu, who had filed Ext P1 obstruction application. Suresh Babu is a transferee pendent lite. Therefore, Ext P1 application falls within the foul of Order 21 Rule 102 of the Code. When Ext P1 application by itself is not maintainable, there is no question of appointing an Advocate Commissioner. Furthermore, the contention that Suresh Babu did not receive notice is untenable, in view of the law laid down by the Hon’ble Supreme Court in **Usha Sinha v. Dina Ram & Ors.** [AIR 2008 SC 1997]. The court below has rightly rejected Ext P10 application. There is no merit in the original petition, which entails to be dismissed at the threshold. 6. The short point is, is there any illegality in ``` O.P.(C)No.2559/2022 ``` ``` -:8:- ``` ## Ext P12 order?. ## 7. The court below, by Ext P12 order, has held ## thus: “9. In this case, claim petitioner purchased the property during the pendency of the suit. So in other words, he is a transferee pendetelite. All the prayers asked for by the petitioner is ascertained in Ext.C4(a) plan. There is no dispute that the properties are one and the same. Claim petitioner is a transferee pendentelite. So he is bound by the decree. Commission application cannot be allowed on mere asking. So the present application is filed with dubious intention to drag the proceedings. Hence the petition is dismissed.” **==> picture [24 x 12] intentionally omitted <==** 8. Undisputedly, the petitioners are claiming a right over the property through Suresh Babu. 9. It is on record that Ext P4 sale deed was executed during the pendency of the suit. 10. Order 21 Rule 102 of the Code unambiguously stipulates that Rules 98 and 100 of Order 21 of the Code are not applicable to a transferee pendent lite. ``` O.P.(C)No.2559/2022 ``` ``` -:9:- ``` In the above background, when Ext P1 application by itself is found to be not maintainable, the court below has rightly held that there is no necessity to appoint an Advocate Commissioner for the purpose of matters for the determination of an elucidating unsustainable application. Ext P10 order does not suffer from any illegality or error warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is consequentially dismissed at the threshold. Sd/- ## **C.S.DIAS,JUDGE** DST/06.01.23 //True copy// P.A.To Judge ``` O.P.(C)No.2559/2022 ``` ## `-:10:-` ## `APPENDIX` - `PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 8.4.2019, E.A. NO.135/2019 IN E.P. NO. 15/2019 IN O.S. NO.865/1989 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA` - `EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 3.3.2022 IN E.A. NO. 135/2019 IN E.P. NO. 15/2019 IN O.S. NO.865/1989 PENDING BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA` - `EXHIBIT P3 TRUE COPY OF THE DECREE DATED 26.3.2008 TOGETHER WITH EXHIBIT C4 (A) PLAN IN O.S. NO. 865/1989 ON THE FILE OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA` - `EXHIBIT P4 TRUE COPY OF THE SALE DEED DATED 18.2.2006 BEARING NO. 225/2006 ON THE FILE OF S.R.O., ALAPPUZHA` - `EXHIBIT P5 TRUE COPY OF THE PARTITION DEED DATED 13.1.2000 HEARING NO. 216/2000 ON THE FILE OF THE S.R.O., ALAPPUZHA` - `EXHIBIT P6 TRUE COPY OF THE TAX RECEIPT DATED 13.9.2006 ISSUED IN FAVOUR OF THE COUNTER PETITIONERS 4 TO 6 IN THANDAPER ACCOUNT NO. 3987 OF PUNNAPRA VILLAGE` - `EXHIBIT P7 TRUE COPY OF THE PARTITION DEED NO. 395/1968 DATED 19.2.1968 ON THE FILE OF THE S.R.O., ALAPPUZHA` - `EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 29.3.2022 E.A. NO.121/2022 IN E.A. NO.135/2019 IN E.P. NO. 15/2018 IN O.S. NO. 865/1989 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA` - `EXHIBIT P9 TRUE COPY OF THE OBJECTION DATED 17.9.2022 FILED BY RESPONDENTS 1 TO 3 IN E.A. NO.121/2022 IN E.A. NO.135/2019 IN E.P.NO.15/2018 IN O.S. NO.865/1989 ON THE FILE OF THE MUNSIFF'S' COURT, ALAPPUZHA` ``` -:11:- ``` ## `O.P.(C)No.2559/2022` - `EXHIBIT P10` - `TRUE COPY OF THE COMMISSION APPLICATION DATED 6.8.2022 IN E.A. NO.201/2022 IN E.A. NO.135/2019 IN E.P. NO. 15/2018 IN O.S. NO. 865/1989 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA` - `EXHIBIT P11 TRUE COPY OF THE OBJECTION DATED 26.10.2022 FILED BY RESPONDENTS 1 TO 3 IN E.A. NO.201/2022 IN E.A. NO.135/2019 IN E.P. NO. 15/2018 IN O.S. NO. 865/1989 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA` - `EXHIBIT P12 TRUE COPY OF THE ORDER DATED 4.11.2022 IN E.A. NO. 201/2022 IN E.A. NO.135/2019 IN E.P. NO. 15/2018 IN O.S. NO. 865/1989 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA` - `EXHIBIT P13 TRUE COPY OF THE PLAINT DATED 3.10.1989, AS AMENDED IN O.S. NO. 865/1989 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA` ``` RESPONDENT’S EXHIBIT: NIL ```