High Court of KeralaSingle Judge2017-11-10Dismissed

Pushkaran K.A v. K.I. Sarojini and Aanandhavally (OP(C) No. 3253 of 2017)

Case / Petition Number:OP(C)No.3253 of 2017 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran, J.
Judgment Date: 2017-11-10
Court Decision / Holding: The original petition under Article 227 is dismissed. The court holds that the petitioner ought to pursue any stay in the lower appellate court where CMA No. 28 of 2016 and the stay application are pending. The execution continues, and the petitioner’s remedy lies with the lower appellate court rather than with the High Court’s supervisory jurisdiction.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Pushkaran K.A

Respondents

K.I. Sarojini
Aanandhavally

Legal Representation & Advocates

Counsels for Petitioners

• SMT. Reena Abraham

Case Synopsis & Summary

This original petition under Article 227 of the Constitution of India challenges Ext.P5, an order of the Principal Munsiff's Court Kochi dated 31-10-2017 in E.P. 59/2017 in O.S. 459/2007, which allowed the counter-claim of the defendants and dismissed O.S. 459/2007 for default, thereby enabling delivery of the property under the decree of 18-11-2015. The petitioner, plaintiff in O.S. 459/2007 and appellant in CMA 28/2016, seeks to set aside Ext.P5 and argues that the execution is improper while a stay application is pending in the lower appellate court. The respondents, who are the opposing defendants, had their counter-claim allowed, resulting in dismissal for default of the original suit. The court cites Shalini Shyam Shetty v. Rajendra Shankar Patil, Jai Singh v. Municipal Corporation of Delhi, and Sobhana Nair K.N. v. Shaji S.G.Nair to delineate the scope of Article 227 and to emphasize that superintendence is aimed at ensuring efficiency and must be exercised sparingly, not as an appeal over lower court findings. Ultimately, the High Court dismissed the petition, directing the petitioner to pursue any stay in the lower appellate court where CMA 28/2016 is pending, and not under Article 227.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

The power of superintendence under Article 227 must be exercised to maintain efficiency and smooth functioning of the justice system and should not be used like a 'bull in a china shop'.
The fountain of justice must remain pure and unpolluted; the wheel of justice should not be halted by unnecessary interference.
Supervisory jurisdiction under Article 227 is broader than Article 226 but must be exercised with great care, caution and circumspection.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P5 (31-10-2017) of the Principal Munsiff's Court, Kochi, which permitted delivery of property under the decree in O.S. 459/2007 and dismissed the suit for default after accepting the counter-claim, is erroneous and should be set aside. He argues that his appeal (C.M.A. No. 28 of 2016) is pending before the lower appellate court and that a stay of execution is to be sought there, not via the High Court’s supervisory power under Article 227. Since CMA 28/2016 remains unresolved, he seeks interim relief and a stay of the execution proceedings (EP 59/2017). He relies on the broad yet restrained powers of Article 227 to safeguard the integrity of judicial proceedings and to prevent miscarriage of justice pending the appellate challenge.

Contentions of Respondents

The respondents advocate that once Ext.P5 was issued, execution could proceed; there was no stay from the lower appellate court, and the petitioner cannot derive relief from Article 227 for an ordinary execution matter. They emphasize that the stay application is already before the lower appellate court (CMA 28/2016) and must be decided there. They rely on jurisprudence confirming that Article 227’s supervisory jurisdiction is limited and not a substitute for appeal, and that interference requires showing manifest error or gross impropriety, which, in their view, is not demonstrated here.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shalini Shyam Shetty v. Rajendra Shankar Patil	(2010) 8 SCC 329	Positive	Used to articulate the scope of Article 227, emphasizing that supervisory power should be exercised sparingly to maintain efficiency and not as a substitute for appeal.
Jai Singh v. Municipal Corporation of Delhi	(2010) 9 SCC 385	Positive	Cited to support the proposition that the High Court’s jurisdiction under Article 227 is broad but must be exercised with care and caution; acts as supervisory, not appellate.
Sobhana Nair K.N. v. Shaji S.G.Nair	[2016 (1) KHC 1]	Positive	Cited to reinforce that Article 227 involves supervisory power, not an appeal of findings, and that interference is limited to manifest error or perverse reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939** ## **OP(C).No. 3253 of 2017 (O)** **-----------------------------------------** ## **E.P.NO. 59/2017 IN O.S.NO. 459 OF 2007 OF THE PRINCIPAL MUNSIFF COURT, KOCHI** ## **------------------** **PETITIONER(S) : --------------------------** **PUSHKARAN K.A, AGED 63 YRS, S/O. AYYAPPAN, KUYILANTHARA HOUSE, MANJANAKKAD, NARAKKAL P.O, ERNAKULAM DISTRICT.** ## **BY ADV. SMT.REENA ABRAHAM** **RESPONDENT(S) :** **----------------------------** **1. K.I.SAROJINI, W/O. LATE BHASKARAN, KAVITHA VALAPPIL HOUSE, MANJANAKKAD, NARAKKAL, PRESENTLY RESIDING AT VALIYAPARAMBIL HOUSE, CHALAKKUDY- 680 307.** **2. AANANDHAVALLY, D/O. ITTAMMAN, KAITHA VALAPPIL HOUSE, MANJANAKKAD DESOM, NARAKKAL VILLAGE, KOCHI TALUK- 682 050** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **OP(C).No. 3253 of 2017 (O)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S 459/2007 OF PRINCIPAL MUNSIFF'S COURT, KOCHI.** - **EXHIBIT P2 COUNTER CLAIM FILED BY THE RESPONDENT IN O.S 459/2007 OF PRINCIPAL MUNSIFF'S COURT, KOCHI.** - **EXHIBIT P3 TRUE PHOTO COPY OF JUDGMENT AND DECREE DATED 18-11-2015 IN O.S 459/2007 OF PRINCIPAL MUNSIFF'S COURT, KOCHI.** **EXHIBIT P4 TRUE PHOTO COPY OF THE CMA 28/16, DATED 19-11-2016.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 31-10-2017 IN EP 59/2017 PRINCIPAL MUNSIFF'S COURT, KOCHI.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** **Msd.** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** O.P.(C)No.3253 of 2017 **-----------------------------------------------** Dated this the 10[th] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the plaintiff in O.S.No.459/2007 on the file of the Principal Munsiff's Court, Kochi and the appellant in C.M.A.No.28/2016 on the file of the Sub Court, Kochi, is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P5 order dated 31.10.2017 of the Principal Munsiff's Court, Kochi, in E.P.No.59/2017 in O.S.No.459/2007, ordering delivery of the property pursuant to the decree in O.S.No.459/2007 dated 18.11.2015. By Ext.P5 judgment in O.S.No.459/2017, the Munsiff's Court allowed the counter claim made by the defendants, who are the respondents herein. By the said judgment, O.S.No.459/2007 stands dismissed for default. In order to execute the decree passed in O.S.No.459/2007, the defendants filed E.P.No.59/2017 before the Principal Munsiff's Court, Kochi. 2. The petitioner filed C.M.A.No.28/2016 before the Sub Court, Kochi, challenging judgment and decree in O.P.(C)No.3253 of 2017 :-2-: O.S.No.459/2007. Subsequent to the filing of the said appeal, the petitioner filed I.A.No.802/2017 seeking an order of stay. 3. On a specific query made by this Court, the learned counsel for the petitioner would submit that service of notice is complete in I.A.No.802/2017 in C.M.A.No.28/2016 and the said application now stands posted to 15.11.2017. Once the petitioner has already moved an appeal before the lower appellate court, challenging the judgment and decree in O.S.No.459/2007, it is for him to seek an order of stay of execution proceedings in E.P.No.59/2017 in O.S.No.459/2007 in the stay petition, i.e., I.A.No.802/2017 filed in C.M.A.No.28/2016; if found necessary, by filing an application to advance the hearing of that interlocutory application. ## 4. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of ## O.P.(C)No.3253 of 2017 :-3-: interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 5. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater O.P.(C)No.3253 of 2017 :-4-: the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 6. In **Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the O.P.(C)No.3253 of 2017 :-5-: lower court or tribunal is in direct conflict with settled principle of law. 7. The appeal filed by the petitioner against the judgment and decree in O.S.No.459/2017 is pending before the lower appellate court for more than one year. By Ext.P5 order dated 31.10.2017, the Principal Munsiff's Court, Kochi, proceeded with E.P.No.59/2017 in O.S.No.459 of 2007, since the petitioner could not produce stay order from the lower appellate court. When the decree is found executable and the petitioner/judgment debtor could not produce stay order from the lower appellate court, the execution court cannot be found fault with in issuing Ext.P5 order. 8. It is for the petitioner to seek an order of stay of execution proceedings in E.P.No.59/2017 in O.S.No.459/2007 from the lower appellate court, where I.A.No.802/2017 in C.M.A.No.28/2016 is pending consideration, if necessary by filing an application to advance the hearing of that interlocutory application. In such circumstances, he cannot approach this Court under Article 227 of the Constitution of India, seeking interference in exercise of the supervisory jurisdiction. O.P.(C)No.3253 of 2017 :-6-: In the result, this original petition stands dismissed, without prejudice to the right of the petitioner to move the lower appellate court, where C.M.A.No.28/2016 and the application for stay are pending consideration. Sd/- **ANIL K.NARENDRAN JUDGE** ami/10.11.17 //True copy// P.A.to Judge