RAVARIVEETTIL AYISHA v. MAVILAMPUNATHIL KATHEESA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 23RD APRIL 2010 / 3RD VAISAKHA 1932 WP(C).No.21906 of 2006(G) ------------------------------AGAINST THE ORDER IN IA.451 & 452 OF 2002 IN OS.46/1998 of SUB COURT, QUILANDY .................... ## PETITIONER(S)/1[st] RESPONDENT: -------------------------------------- RAVARIVEETIL AYISHA, D/O.MOIDEEN, OTHAYOTH, MELADY AMSOM, DESOM, KOYILANDY TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY ## RESPONDENT(S)/PETITIONER & RESPONDENTS 2 TO 10, 12 TO 16: --------------------------------------------------------------------------- 1. MAVILAMPUNATHIL KATHEESA,D/O.MOIDU HAJI, PATILAKKANDIYIL, IRINGAL AMSOM, DESOM BY NEXT FRIEND THAZHE KAVUMPURATH HARISH, S/O. ABDULLA, MELADY AMSOM, KANNANKUKLAM DESOM,KOYILANDY TALUK. 2. MAVILAMPUNATHIL ABDULLA, S/O.MOIDU HAJI, PATTAYAMPARAMBIL, KARUVANCHERRY AMSOM, KUNNATHKARA DESOM, VADAKARA TALUK. 3. MAVILAMPUNATHIL ASSAYINAR,S/O.MOIDU HAJI OTHAYOTH, MELADY AMSOM, KEEZHUR DESOM, KOYILANDY TALUK. 4. MAVILAMPUNATHIL AMINA,D/O.MOIDU HAJI, CHALIPARAMBATH, MELADY AMSOM, KEEZHUR DESOM, KOYILANDY TALUK. 5. MAVILAMPUNATHIL MOOSA,S/O.MOIDU HAJI, NHERAPOYIL, KARUVANCHERY AMSOM, KUNNATHKARA DESOM, VADAKARA TALUK. WP(C).No.21906 of 2006(G) -2- 6. RAVARIVEETTIL PATHUMMA, W/O. POCKER, MAVILAMPUNATHIL, MELADY AMSOM, KEEZHUR DESOM, KOYILANDY TALUK. [DEAD] 7. SON, MAVILAMPUNATHIL ABDURAHIMAN, -DO-. 8. SISTER, MAVILAMPUNATHIL JAMEELA, PRESIDENT, CHENGOTTUKAVU GRAMA PANCHAYAT, MUTHIRAPARAMBATH, EDAKKULAM AMSOM, DESOM, KOYILANDY TALUK. 9. MAVILAMPUNATHIL SAINABA, D/O.PATHUMMA, VANNATHAMVEETTIL, PURAKKAD AMSOM, DESOM, KOYILANDY TALUK. - ** 10. MEETHALE THAVODY MARIYOMMA, D/O.MAMMAD, IRINGAL AMSOM, DESOM, KOYILANDY TALUK. [DEAD] 11. MEETHALE THAVODY AYISHA, W/O.LATE ASSAN, IRINGAL AMSOM, DESOM, KOYILANDY TALUK. 12. MEETHALE THAVODY MUHAMMAD, S/O. -DO--DO- 13. BROTHER, MEETHALE THAVODY ABDULLA -DO- 14. BROTHER, MEETHALE THAVODY ABDURAHIMAN, (MINOR) 16 YEARS, REPRESENTED BY MOTHER 11TH RESPONDENT. 15. SISTER, MEETHALE THAVODY FATHIMA, IRINGAL AMSOM, DESOM, KOYILANDY TALUK. *[RESPONDENT NO.6 IS DEAD AND R7 TO R9 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED R6 AS PER ORDER DATED 15/12/06 IN MEMO DATED 12/12/06] **[RESPONDENT NO.10 IS DEAD AND R11 TO R15 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED R10 AS PER ORDER DT.12/11/07 IN I.A.12814/07] ADV. SRI.P.K.SURESH KUMAR FOR R.1 SRI.K.P.SUDHEER FOR R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/04/2010, ALONG WITH EX.FA NO.22 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE ORDER IN I.A.451/02 & I.A.452/02 IN O.S.46/98 OF SUB COURT, KOYILANDY DATED 30/06/06. EXT.P2:- TRUE COPY OF THE PRELIMINARY DECREE IN O.S.46/98 DATED 31/10/2001. EXT.P3:- TRUE COPY OF THE JUDGMENT IN O.S.46/98 OF SUB COURT, KOYILANDY DATED 31/10/01. EXT.P4:- TRUE COPY OF the ORDER IN FDIA 207/02 IN O.S.46/98 DATED 30/06/06. .................... ## PIUS C. KURIAKOSE, J. -----------------------------------------------W. P. C. No.21906 of 2006 & Ex. F. A. No.22 of 2006 -----------------------------------------------Dated this the 23[rd] day of April, 2010 ## **JUDGMENT** Ex. F. A. No.22/06 is preferred by the third party obstructor who filed application under Order 21 Rule 97 of the CPC before the execution court resisting the execution proceedings to the extent the same related to the plot in Ext.C6 plan and the buildings situated therein. Under challenge in the appeal is the order of the execution court dismissing the application filed by her. The main premise on which she filed E.A.308/05, the application under Order 21 Rule 97 C.P.C before the execution court is that the property in respect of which she lodged the claim is the property scheduled in O.S.46/98 filed by her in which a preliminary decree is already passed in her favour directing partition of the property and allotment of 248/480 shares to her. Under W. P. C. No.21906/2006 & con. cases -2- challenge in W.P.C.21906/06 which is also filed by the appellant in Ex. F. A. 22/06 is Ext.P1 order passed by the Sub Court, Koyilandy condoning the delay caused in the matter of filing I.A.452/02, an application for setting aside the ex parte decree passed against the second defendant in O.S.46/98 and the order in I.A.451/02 allowing that I.A. For the sake of convenience, I shall first deal with W.P.C.21906/06. 2. The above Writ Petition is filed by Smt.Ayisha who was the plaintiff in O.S.46/98. The first respondent in the Writ Petition is Smt.Kadeesa who filed I.A.452/02 for setting aside the ex parte decree in O.S.46/98 and for I.A.451/02 for condoning the delay caused in the matter of filing I.A.452/02 Ext.P1 produced in the Writ Petition is the common order in I.A.451/02 and for I.A.452/02. Exts.P2 and P3 are respectively copies of the preliminary decree and preliminary judgment in O.S.46/98. The finding in Ext.P3 judgment which is passed by the court on evaluating the W. P. C. No.21906/2006 & con. cases -3- oral and documentary evidence adduced by the parties therein i.e. PW1, Exts.A1 to A9 Exts.B1 and B2 is that the judgment and decree in O.S.203/90 is not binding on the Writ Petitioner Smt.Ayisha since in that suit she had not been made a party. On the strength of Exts.P2 and P3, the Writ Petitioner resisted execution proceedings in O.S.203/90 by filing E.A.308/05 which was construed by the court as one filed under Order 21 Rule 97 of the CPC. That petition was dismissed and Execution First Appeal No.22/06 is filed by the Writ Petitioner against that order. I.A. Nos.451/02 and 452/02 were filed by the first respondent/Kadeesa for setting aside the ex parte decree and for condoning the delay. In both these applications Smt.Kadeesa is represented by her next friend one Harish who is her own grandson. What is claimed in these applications is that Smt.Kadeesa who was the second defendant in O.S.46/98 is a person of unsound mind and was being treated by Dr.K.K.Rajagopalan of the Mental Hospital at Kozhikode. The W. P. C. No.21906/2006 & con. cases -4- Writ Petitioner as well as the third respondent in the I.As filed separate counter statements in the I.As. The claim of the first respondent/petitioner that she was insane, was stoutly refuted. It was pointed out that the first respondent Kadeesa herself engaged a lawyer and had pursued/ defended the various proceedings in O.S.203/90 at the time when O.S.46/98 was filed. The evidence before the court in I.A.452/02 and I.A.451/02 consisted of the oral evidence of PW1, the grandson and next friend of the first respondent and Exts.A1, A2, B1, B2 and B3. Ext.A1 is Medical Certificate issued by Dr.K.K.Rajagopalan which is to the effect that the first respondent is under his treatment. Exts.B1 to B3 are copies of the plaint, order and the decree in O.S.203/90. The learned Subordinate Judge was very much impressed by Ext.A1 Medical Certificate and also by Ext.A2 written statement filed by the defendants in O.S.203/90. In Ext.A2 written statement a contention is taken by the defendants in that suit that the first respondent W. P. C. No.21906/2006 & con. cases -5- is an insane person. According to the learned Subordinate Judge, since Ext.A2 document is a document relating to a point of time when there was no dispute regarding the sanity of the first respondent and hence, Ext.A2 coupled with Ext.A1 can be relied on to accept the case of the first respondent that she was insane at the time of filing of the suit. 3. I shall now deal with Ex.F.A.22/06. By the order which is impugned in this appeal, the application filed by the appellant under Order 21 Rule 97 was dismissed. The appellant produced Exts.A1 to A15. Ext.A1 is the copy of the Sale Deed under which the appellant claim one half right over item No.7 of the schedule property in O.S.203/90. According to her, it is the same as the plaint schedule property in O.S.46/98. Exts.A2 to A14 are basis revenue receipts and property tax receipts issued by the local authority. The property tax receipts are in respect of the building standing on the property covered by Ext.A1. W. P. C. No.21906/2006 & con. cases -6- Ext.A14 is copy of the judgment in O.S.46/98 and Ext.A15 is the copy of the decree therein. Exts.B1 and B2, the only documents filed on the side of the contesting respondents are copies of the judgment and decree in O.S.203/90. The learned Subordinate Judge dismissed the application filed by the appellant. The learned Subordinate Judge found that the application under Order 21 Rule 97 filed by a stranger was maintainable. The learned Subordinate Judge further found that the decree in O.S.203/90 is ex facie not binding on the appellant on the reason that she was not a party to that suit. Nevertheless the application was dismissed on the view that the evidence in the case was not sufficient to hold that the property which is subject matter of the application is the same as the property covered by the judgment and decree in O.S.46/98. Exts.A2 to A13 tax receipts also according to the learned Subordinate Judge will not clearly show that they pertain to one and the same property. The reason which weighed most with the learned Subordinate Judge in W. P. C. No.21906/2006 & con. cases -7- dismissing the application was the circumstance that the husband/4[th] respondent in O.S.203/90 and the appellant and husband are residing together in the same house. According to the learned Subordinate Judge in O.S.46/98 the appellant had not raised a specific plea that the decree in O.S.46/98 is not binding on her. The learned Subordinate Judge would conclude that it is by suppressing the decree in O.S.203/90 that the appellant filed O.S.46/98. In the opinion of the learned Subordinate Judge, the appellant could not have pretended ignorance regarding the existence of decree in O.S.203/90 for the reason that the husband was a party to the same especially since the other defendants in the suit had referred to the decree in O.S.203/90. According to the learned Subordinate Judge, the version of the appellant that she was unaware of the suit 203/90 cannot be believed. 4. Extensive submissions were addressed before me by Sir.B.Krishnan, the learned counsel for the Writ Petitioner and the appellant and also by Sri.P.K.Suresh Kumar, the W. P. C. No.21906/2006 & con. cases -8- learned counsel for the contesting respondents. The submissions of Mr.Krishnan were on the basis of the grounds raised in the Writ Petition and the memorandum of appeal. Mr.Suresh Kumar would support the impugned orders on the basis of reasons stated therein. Strong reliance was placed by Mr.Krishnan on the judgment of Sri.Balakrishna Menon J. in Appi Pennu v. Kalyambi Nanan (1984 KLT 763) to argue that when there are two conflicting decisions in respect of the same the last decision should prevail between the parties and the first one should be regarded as dead. Between the decrees in O.S. Nos.203/90 and 46/98 the latter decision is decree in O.S.46/98. According to Mr.Krishnan, Exts.A1 to A15 were allowed to be marked on the consent of the contesting respondents and in the teeth of Exts.A1 to A15 it is idle for the respondent to contend that the property covered by Exts.A1 to A15 and the property which is subject matter of the petition under Order 21 Rule 97 are two different properties assailing W. P. C. No.21906/2006 & con. cases -9- Ext.P1 order in the Writ Petition. Mr.Krishnan argued that the court below was bound to follow the procedure as envisaged by Rule 15 of Order 32 CPC since the case of the first respondent was that she was a person of unsound mind. Counsel submitted that the first respondent was pursuing O.S.203/90 and defending the various proceedings filed therein independently by engaging her own lawyer. The court below should have conducted a voir dire to be satisfied prima facie that the case of the first respondent that she is an insane person is correct. 5. I have very anxiously considered the rival submissions addressed at the Bar. I have also scanned the orders which are impugned in this Writ Petition and the Appeal. 6. I am of the view that Ext.P1 order impugned in WPC.21906/06 warrants interference by invoking the supervisory jurisdiction of this Court under Article 227. Ext.P1 order is passed on the basis of two applications filed W. P. C. No.21906/2006 & con. cases -10- by the first respondent wherein she is described as a person of unsound mind and is represented by her grandson. Rule 15 of Order 32 CPC provides that Rules 1 to 14 except Rule 2(A) of Order 32 CPC will apply to persons of unsound mind as far as may be. Ext.A1 medical certificate may prima facie look convincing but then the court below should have noticed that allegedly insane person was prosecuting O.S.203/90 and was defending the application filed by the Writ Petitioner on the execution side of that suit independently by engaging her own counsel. Under such circumstances, the court below should have insisted on the personal appearance of the first respondent so that a voir dire can be conducted to be convinced about the correctness of the first respondent's allegations that due to insanity she has become incapable of taking care of herself. Ext.A2 written statement filed in O.S.203/90 is seen highlighted by the learned Subordinate Judge but evidently the appellant Writ Petitioner was not a party to that suit. Notwithstanding W. P. C. No.21906/2006 & con. cases -11- the contention in the written statement that the first respondent was insane, nobody was serious about that contention and that is why the first respondent was allowed to prosecute the suit in her own name. I am therefore of the view that in the short score Ext.P1 order impugned in the Writ Petition can be set aside and Sub Court can be directed to pass fresh orders in I.A. Nos.452/02 and 451/02 after conducting an enquiry as envisaged by Rule 15 of the CPC. 7. As for the order which is impugned in the execution first appeal I am informed that on the strength of that order the first respondent has been able to take possession of the property which was allotted to her in terms of the decree in O.S.203/90. The decision in that order turns mostly on two or three reasons. First, the identity of the property covered by claim petition under Order 21 Rule 97 as the property covered by the decree in O.S.46/98 is not established. Second the appellant's husband was a party to O.S.203/90 and she cannot pretend ignorance about the existence of the W. P. C. No.21906/2006 & con. cases -12- decree in O.S.203/90. Third, in O.S.46/98 the appellant suppressed the existence of the decree in O.S.203/90. According to me having found that the decree in O.S.203/90 is not binding on the appellant it was not proper on the part of the learned Subordinate Judge to blame the appellant for not having disclosed the existence of the decree in O.S.203/90 in O.S.46/98. As a matter of fact, a careful reading of Ext.P3 will show that in O.S.46/98, the appellant who was the plaintiff therein had made averments regarding O.S.203/90 and had also produced Exts.A3 and A4 the judgment and decree in that suit as items of evidence on the appellant's side. True the appellants husband was a party to O.S.203/90. But it is seen that the appellant's husband did raise a contention that his wife/the appellant is entitled in her own interest ½ right over the property which is subject matter of the claim petition. One of the submissions of Mr.Krishnan was that the appellant will be able to adduce further evidence if opportunity is given to W. P. C. No.21906/2006 & con. cases -13- prove that the property which is item No.7 in O.S.203/90 is the same as the property which is subject matter of O.S.46/98. I am inclined to set aside the order which is impugned in Execution First Appeal also under such circumstances and direct the court below to take a fresh decision after affording opportunity to all parties to adduce further evidence if they want to. Since it is brought to my notice that the decree in O.S.203/90 has been executed in part, there will be a direction that as regards the properties in question the status quo obtaining today will be maintained by both sides till fresh decision is taken. The result of the above discussion therefore is as follows:- 8. Writ Petition No.21906/06 is allowed. Ext.P1 is set aside. I.A. Nos.451/02 and 452/02 are remitted back to the Sub Court, Koyilandy for fresh decision after complying with the procedure envisaged by Rule 15 of Order 32 CPC. Ex. F.A. No.22/06 is also allowed by way of remand. The order impugned therein is set aside. E.A.308/05 will be decided by W. P. C. No.21906/2006 & con. cases -14- the learned Subordinate Judge afresh after affording opportunity to all parties to adduce further evidence. Parties will appear before the respective courts on 22/06/10. PIUS C. KURIAKOSE JUDGE kns/-