Shyno George v. Joseph Antony and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
K. Harilal
Judgment Date: 2016-02-26
Court Decision / Holding: Hence, this review petition is dismissed without prejudice to what is stated above.
Final Disposition: Review petition dismissed.

Parties to the Case

Appellants / Petitioners

Shyno George

Respondents

Joseph Antony
K.K. Ramakrishnan (died LRs impleaded)
Sasidharan
Baburaj (died LRs)
Mohanan s/o Veliyadhan (deceased)
Baby w/o Sasidharan
Nisha d/o Sasidharan
Nida d/o Sasidharan
Latha Mohanan
Manu Velayuthan
Arya Narayani (minor)
Kalyani (Addl.R12)
Mini (Addl.R13)
Jayasree (Addl.R14)
Grija (Addl.R15)
Nithin Raj (Addl.R16)
Jishnu Raj (Addl.R17)

Legal Representation & Advocates

Counsels for Petitioners

• Sri KC Charles

Counsels for Respondents

• Sri P. Chandrasekhar
• Sri P. T. Sebastian Tomy
• Sri G. Padmaraj
• Sri Liju M.P

Case Synopsis & Summary

Shyno George's RP 217/2015 challenges the Kerala High Court's 2012 ruling in RFA 69/2012, which held that the impugned decree was defective for being passed against a dead person and directed that proceedings be rectified. The underlying suit, O.S. No. 429 of 2006, was a suit for specific performance of a property transaction in Paravur taluk. During the suit, the fourth defendant Mohanan died; his legal representatives were not brought on record, triggering applications for condonation of delay, impleadment, and setting aside abatement in the RFA. The High Court in 2012 examined these applications and, invoking the ratio of Assyamma v. Aisabi, directed that Mohanan’s estate be represented on record so that a proper decree could be passed against the estate and that the decree against the deceased could be rectified accordingly. The review petition contends that the decree remains defective and seeks to energise the decree against Mohanan’s estate, preserve the rights of Shyno George (the eighth defendant) to challenge the judgment, and permit a full appeal if necessary. The court ultimately declines to review, noting that there is no legitimate ground to revisit the earlier decision, and dismisses the petition, while clarifying that the petitioner’s rights to pursue an appropriate challenge to the decree remain preserved in future proceedings.

Legal Doctrines & Maxims

Principles of rectification of proceedings and impleadment of legal representatives for abatement, as per Assyamma v. Aisabi (1976 KLT 101)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the impugned decree was issued against a dead party, Mohanan, and that proper rectification is necessary by bringing Mohanan's legal representatives on record to energise the decree against his estate. It relies on the principle stated in Assyamma v. Aisabi (1976 KLT 101) that proceedings may be rectified when abatement or death of a party creates a defect, enabling proper adjudication and an eventual appeal. The petitioner asserts that the review should allow rectification to be effected in accordance with due process and that Shyno George's rights to challenge the decree remain intact in the event of future orders; the remedy lies not in erasing the order but in rectifying the proceedings.

Contentions of Respondents

The respondents submit that the decree cannot be reviewed merely to rectify a deceased party's status; the appropriate remedy is to rectify the decree in the trial court by impleading Mohanan's legal representatives, and not to re-open the judgment by way of review. They rely on relevant principles to ensure that the rights of all affected parties are preserved and contend that the review petition has no live grounds; thus, the impugned judgment should stand.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Assyamma v. Aisabi	1976 KLT 101	Positive	Cited for the principle of rectification of proceedings and impleadment to energise a decree, as applied in the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN &** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937** **RP.No. 217 of 2015 () IN RFA.69/2012 --------------------------------------** **AGAINST THE ORDER/JUDGMENT IN RFA 69/2012 of HIGH COURT OF KERALA DATED 07-02-2012** **REVIEW PETITIONER(S):/APPELLANT** **----------------------------------------** **SHYNO GEORGE AGED 43 YEARS W/O. GEORGE, KANNATTUMADATHIL EDAPPALLY VADAKKUMBHAGOM KARA EDAPPALLY NORTH VILLAGE REPRESENTED BY HER POWER OF ATTORNEY HOLDER HARIKUMAR M.R. S/O.REGHUNATHA PILLAI, AGED 55 YEARS, KESDAVA VILASAM GLASS FACTORY ROAD, KALAMASSERY P.O. PIN-683 104.** **BY ADV. SRI.K.C.CHARLES** ## **RESPONDENT(S):/RESPONDENTS** **----------------------------** ||**1.**|**JOSEPH ANTONY**| |---|---|---| |||**S/O.THOMAS, PARATHARA VETTIL**| |||**PARUDEESA NAGAR, PARAVOOTHARA, PARAVUR VILLAGE**| |||**PARAVUR TALUK.**| |*****|**2.**|**K.K.RAMAKRISHNAN**<br>**DIED LRS IMPLEADED**| |||**S/O. KANNAN, KOTHARA VEETTIL,**| |||**MURAVANTHURUTHU MURI**| |||**VADAKKEKKARA VILLAGE, PARAVUR TALUK.**| ||**3.**|**SASIDHARAN**| |||**S/O.VELAYUDHAN, NISHBHAVAN**| |||**KIZHAKKEPRAM MURI KOTTIVALLY VILLAGE**| |||**PARAVUR TALUK (DIED).**| |******|**4.**|**BABURAJ**<br>**DIED LRS IMPLEADED**| |||**S/O. VELAYUDHAN, SASTHAMPARAMBIL,**| |||**CHETTIBHAGOM KARA**| |||**VARAPPUZHA VILLAGE, PARAVUR TALUK.**| ## **RP217/15** **5. MOHANAN S/O. VELAYUDHAN, SASTHAMPARAMBIL, CHENNUR KARA KADAMAKKUDY VILLAGE (DIED).** **6. BABY W/O. SASIDHARAN, NISHA BHAVAN, KIZHAKKEPRAM MURI KOTTIVALLY VILLAGE, PARAVUR TALUK.** **7. NISHA D/O. SASIDHARAN, NISHA BHAVAN, KIZHAKKEPRAM MURI KOTTIVALLY VILLAGE, PARAVUR TALUK.** **8. NIDHA D/O. SASIDHARAN, NISHA BHAVAN, KIZHAKKEPRAM MURI KOTTIVALLY VILLAGE, PARAVUR TALUK.** **9. LATHA MOHANAN, W/O.LATE MOHANAN, AGED 50 YEARS, VELAYUDHA MANDIRAM, SASTHAMPARAMBIL CHENNUR KARA, KADAMAKKUDY VILLAGE- 682 027. (L/R OF D4)** **10. MANU VELAYUDHAN, S/O.LATE MOHANAN, AGED 19 YEARS, VELAYUDHA MANDIRAM, SASTHAMPARAMBIL CHENNUR KARA, KADAMAKKUDY VILLAGE- 682 027. (L/R OF D4)** **11. ARYA NARAYANI (MINOR) D/O.LATE MOHANAN, AGED 15 REPRESENTED BY HER GUARDIAN MOTHER 8TH RESPONDENT RESIDING AT** **VELAYUDHA MANDIRAM, SASTHAMPARAMBIL CHENNUR KARA, KADAMAKKUDY VILLAGE- 682 027. (L/R OF D4) (MINOR RESPONDENTS 10 AND 11 REPRESENTED BY THEIR NEXT FRIEND LATHA MOHANAN, THE 9TH RESPONDENT)** - **ADDL.R12 KALYANI, W/O.K.K.RAMAKRISHNAN, AGED 75, KOCHUTHARA HOUSE, MARAVANTHURUTH MURI, VADAKKEKKARA P.O., PARAVUR TALUK.** - *** ADDL.R13 MINI, D/O.K.K.RAMAKRISHNAN, AGED 43, KOCHUTHARA HOUSE, MARAVANTHURUTH MURI, VADAKKEKKARA P.O., PARAVUR TALUK.** - *** ADDL.R14 JAYASREE, D/O.K.K.RAMAKRISHNAN, AGED 43, KOCHUTHARA HOUSE, MARAVANTHURUTH MURI, VADAKKEKKARA P.O., PARAVUR TALUK.** ## **RP217/15** **** ADDL.R15 GIRIJA, W/O.BABURAJ, AGED 55, SASTHAMPARAMBIL CHETTIBHAGOM KARA, VARAPPUZHA VILLAGE, PARAVUR TALUK. ** ADDL.R16 NITHIN RAJ, S/O.BABURAJ, AGED 31, SASTHAMPARAMBIL CHETTIBHAGOM KARA, VARAPPUZHA VILLAGE, PARAVUR TALUK. ** ADDL.R17 JISHNU RAJ, S/O.BABURAJ, AGED 24, SASTHAMPARAMBIL CHETTIBHAGOM KARA, VARAPPUZHA VILLAGE, PARAVUR TALUK.** ***(R2 DIED AND LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS ADDL.R12 TO R14 VIDE ORDER DATED 26.02.2016 IN I.A.NO.1484/15.)** ****(R4 DIED AND LEGAL HEIRS OF DECEASED R4 ARE IMPLEADED AS ADDL.R15 TO R17 VIDE ORDER DATED 26.02.2016 IN I.A.NO.1487/15.)** **R1 BY ADV. SRI.P.CHANDRASEKHAR R12-R14 BY ADV. SRI.P.T.SEBASTIAN TOMY R4, R6, R7 & R8 BY ADV. SRI.G.PADMARAJ R4, R6, R7 & R8 BY SRI.LIJU. M.P** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jg-12/5** THOTTATHIL B.RADHAKRISHNAN & K.HARILAL, JJ. .................................................................... R.P.No.217 of 2015 in R.F.A. No.69 of 2012 .................................................................... Dated this the 26[th] day of February, 2016. ## O R D E R ## Thottathil B.Radhakrishnan, J. - 1.Heard the learned counsel for the review petitioner and the learned counsel for the contesting respondents. 2.This review petition is against the disposal of R.F.A. No.69 of 2012 as per judgment dated 07.02.2012 wherein it was recorded that the decree impugned in that appeal was defective because it was passed against a dead person as well. Through the impugned judgment, the plaintiff was left with liberty to rectify the proceedings in terms of the principles stated by this Court in Assyamma v. Aisabi [1976 KLT 101]. We may also note that what led to that judgment is order dated 07.02.2012 on applications seeking condonation of delay and for impleadment and setting aside abatement instituted as regards the estate of the deceased fourth defendant. That was ordered in the light manner directing RP217/15 -2- procedure to be complied with in terms of the ratio of of the decision in Assyamma (supra). 3.Joseph Antony filed a suit for specific performance as O.S.No.429 of 2006. The appeal, R.F.A. No.69 of 2012, arose therefrom. His plea was that defendant Nos.1 to 4 jointly entered into an agreement of sale agreeing to convey the suit property to him. During the suit, it was pleaded by defendant Nos.1 to 4 that they admit the agreement, however that, the plaintiff failed to perform his part of the contract, and after the second defendant died, defendant Nos. 1, 3 and 4 and the legal representatives of the second defendant transferred the property to Shyno George, who was thereupon impleaded as the eighth defendant. Second defendant having died, additional defendant Nos.5 to 7 were brought on record. Shyno George who is thus the transferee of the property in relation to which specific performance is sought for thus came to contest the suit. Having lost it, he filed the appeal, R.F.A. No.69 of 2012. RP217/15 -3- 4.What was noted during the course of the appeal was that the fourth defendant, Mohanan, had died during the pendency of the suit. But his legal representatives were not brought on record. It was thus the C.M.Application and the applications for impleadment and setting aside abatement noted above were filed in the appeal. This Court took the view that Mohanan's legal representatives should have been brought on record on the trial side and the proper course that would be open is to permit the plaintiff to apply for rectification of proceedings, including the decree and the judgment, by bringing on record the legal representatives of the fourth defendant. For that limited purpose, the decree as against the fourth defendant was vacated and the matter was remitted. 5.The net result of the decision of this Court, which was sought to be reviewed is one where there is a suspended animation of the decretal liability of the other defendants and the requirement to RP217/15 -4- energise that part of the decree which related to Mohanan's estate. If Mohanan's estate is represented through the legal representatives by appropriate impleadment before the lower court, a decree could be passed against such legal representatives of Mohanan as well representing his estate. On the occurrence of such event, any person aggrieved, including the additional eighth defendant, Shyno George, will have a right to appeal against that decree in its entirety. All grounds that would be available to an appeal would nevertheless be available even after following such procedure. This is all the more so because, the judgment sought to be reviewed and the order on the applications for condonation of delay and for impleadment and for setting aside abatement as issued by this Court earlier, do not in any manner impair the review petitioner's (eighth defendant - Shyno George) right to appeal against the contents of the judgment and the decree which may, ultimately, be handed down by the trial court following the contents of the judgment sought to be reviewed. RP217/15 -5- In the light of what is aforesaid, we do not see that there is any ground or purpose to review the judgment sought to be reviewed. All that is required is to clarify that the impugned judgment does not impair the rights of the review petitioner, Shyno George, who is the eighth defendant to challenge the decree and the judgment as a whole, if and when it is delivered against his interest by the trial court. Hence, this review petition is dismissed without prejudice to what is stated above. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) (K.HARILAL, JUDGE) jg-26/2