Remani v. Nadaran and Prasad (Execution Second Appeal)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 ``` ``` EX.SA NO. 1 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 10.11.2023 IN A.S.NO.21/2022 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KOTTARAKKARA AROSE FROM THE ORDER DATED 08.04.2022 IN E.A.NO.28/2017 IN E.P.NO.24/2008 IN O.S.NO.256/1998 ON THE FILES OF THE MUNSIFF COURT, KOTTARAKKARA ``` ## **`APPELLANT/APPELLANT/CLAIM PETITIONER:`** ## **`REMANI`** ``` AGED 61 YEARS, D/O CHINNAMMA, KIZHAKKEVILA PADINJATTATHIL VEEDU, GANDHI NAGAR, KOTTARAKKARA P.O., KOTTARAKKARA, KOLLAM, PIN - 691506 ``` - **`BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN`** ## **`RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR:`** - **`1 NADARAJAN AGED 63 YEARS`** ``` S/O RAGHAVAN, KIZHAKKEVILA PADINJATTATHIL VEEDU, GANDHI NAGAR, KOTTARAKKARA P.O., KOTTARAKKARA, KOLLAM-691506 ``` ``` NOW RESIDING AT SALU BHAVAN, KARUVELIL MURI, EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM, PIN - 691505 2PRASAD @ SALU S/O JAINAMMA, SALU BHAVAN, KARUVELIL MURI, EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM, PIN - 691505 ``` ``` THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Ex.S.A. No. 1 of 2024 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 8[th] day of January, 2024** This execution second appeal has been filed under order XXI read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging concurrent verdicts entered into by the trial court as well as the Appellate Court in A.S. No.21 of 2022 dated 10.11.2023 on the files of the Court of the Subordinate Judge, Kottarakkara arose from the verdict in E.A.No.28/2017 in E.P.No.24/2008 in O.S. No.256 of 1998 dated 08.04.2022 on the files of the Munsiff Court, Kottarakkara. The appellant is the claim petitioner, who is none other than the wife of the judgment debtor. 2. Heard the learned counsel for the appellant on admission. 3. I shall refer the parties in this appeal with reference to their status before the trial court. The appellant will be referred as “claim petitioner” and the ``` Ex.S.A. No. 1 of 2024 ``` ``` 3 ``` respondents will be referred as “decree holder and judgment debtor”. 4. In this matter, the suit was filed in 1998 as O.S. No.256/1998, which led to filing of E.P. No.24/2008, after finality of the dispute in between the decree holder and judgment debtor. Now, it seems to be at the verge of delivery and the claim petitioner who is none other than the wife of the judgment debtor put up claim over the decree scheduled property on the ground that she has perfected right over the same by adverse possession and limitation. 5. The decree holder filed objection to the claim petition and resisted the petition, mainly alleging that the intention of the claim petitioner was to obstruct the execution of the decree and the claim petition bereft any merits. 6. The Execution Court recorded evidence. PWs 1 to 4 examined and Exts.A1 to A14 marked on the side of the claim petitioner. Exts.X1 to X6 were also marked as Court exhibits. ``` Ex.S.A. No. 1 of 2024 ``` ``` 4 ``` 7. Finally, the Execution Court found that the claim petition is not maintainable at the instance of the wife of the judgment debtor, on the finding that claim itself was a “crooked up story”. 8. Thereafter, the matter was taken before the Appellate Court as A.S. No.21/2022. The Appellate Court also concurred the finding of the trial court. 9. In this matter, as I already observed, the suit was filed in the year 1998. After a long battle, decree attained finality and the same was put in execution in the year 2008. Now, when the decree holder is about to enjoy fruits of the decree, the same is attempted to be obstructed by the wife of the judgment debtor without any basis by raising plea of adverse possession and limitation. It is relevant to note that the claim petition at the instance of the wife of the judgment debtor, who is maintaining a fiduciary relationship being joint residents, in the plaint schedule building, by raising plea of adverse possession and limitation, not at all established and accordingly the trial court as well as the Appellate Court rightly rejected the ``` Ex.S.A. No. 1 of 2024 ``` ``` 5 ``` said claim. The documents relied on by the claim petitioner are documents generated during the pendency of this litigation and some are generated even after passing the decree. 10. Therefore, it appears that the trial court rightly rejected the claim of the claim petitioner on the finding that the same is a “crooked up story”. The appellate Court also concurred the same. Thus, it appears that the intention behind the claim petition is to delay, protract and avoid delivery of the property to the decree holder, who has been litigating from 1998 onwards. 11. In order to admit and maintain a second appeal, substantial question of law is to be formulated, as per the mandate of Order XLII Rule 2 read with Section 100 of CPC. Order XLII Rule 2 provides thus: **“2. Power of Court to direct that the appeal be heard on the question formulated** **by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be ``` Ex.S.A. No. 1 of 2024 ``` ``` 6 ``` heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.” 12. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso stipulates that nothing in this sub-section ``` Ex.S.A. No. 1 of 2024 ``` ``` 7 ``` shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 13. In the decision reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others** , the Apex Court held that: The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In **Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** , the Apex Court held that: "After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is ``` Ex.S.A. No. 1 of 2024 ``` ``` 8 ``` obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence" "It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that ``` Ex.S.A. No. 1 of 2024 ``` ``` 9 ``` no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact." "If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application ``` Ex.S.A. No. 1 of 2024 ``` ``` 10 ``` on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal." When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of ``` Ex.S.A. No. 1 of 2024 ``` ``` 11 ``` law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S. 100 of the CPC. 14. In a latest decision of the Apex Court reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC] Government of Kerala v. Joseph** , it was held as under: For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) wherein this Court observed as follows: “12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It ``` Ex.S.A. No. 1 of 2024 ``` ``` 12 ``` is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. 15. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it ``` Ex.S.A. No. 1 of 2024 ``` ``` 13 ``` is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal. 16. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this execution second appeal. 17. Accordingly, this execution second appeal stands dismissed, without being admitted, as indicated above. ``` Ex.S.A. No. 1 of 2024 ``` ``` 14 ``` All interlocutory applications also stand dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK