Tomy Varghese v. Oomman Varghese and others (RSA No. 1297 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933** ## **RSA.NO. 1297 OF 2009 ( )** **----------------------------------AS.36/2007 OF ADDITIONAL DISTRICT COURT, ALAPPUZHA. I.A. NO.1721 OF 2006 IN OS.62/1990 OF ADDITIONAL SUB COURT, ALAPPUZHA** ## **APPELLANT/APPELLANT - 8TH DEFENDANT:** **-----------------------------------------------------------------** **SRI.TOMY VARGHESE, ELANJICKAL HOUSE, Y.M.C.A. JUNCTION, ALAPPUZHA.** **BY SENIOR ADVOCATE SHRI P.G. PARAMESWARA PANICKER BY ADV. SRI.P.GOPAL** ## **RESPONDENT(S)/RESPONDENTS 1 TO 11/PLAINTIFFS 1 TO 4:** **----------------------------------------------------------------------------------------** **1. OOMMAN VARGHESE, ELENJICKAL, RESIDING** - **AT KALAMOOTTU HOUSE, MUTTATHU LANE, PAZHAVEEDU ALAPPUZHA. (NOW RESIDING AT, CHEELAD LANE PAZHAVEEDU).** **2. RANI JOY, JOYS HOUSE, ROOTS, EBRAHIMS ENCLAVE, S.R.M.ROAD, KOCHI.** **3. RAHUL JOY, JOYS HOUSE, ROOTS, EBRAHIMS ENCLAVE, S.R.M.ROAD, KOCHI.** **4. MRIDUL JOY, JOYS HOUSE, ROOTS, EBRAHIMS ENCLAVE, S.R.M.ROAD, KOCHI.** **5. BABU VARGHESE, ELANJICKAL, Y.M.C.A.JUNCTION, ALAPPUZHA.** **6. JOSE VARGHESE, ELANJICKAL, Y.M.C.A.JUNCTION, ALAPPUZHA.(DIED).** **7. GEORGE VARGHESE, ELANJICKAL, Y.M.C.A.JUNCTION, ALAPPUZHA.(DIED).** **8. PAUL VARGHESE, ELANJICKAL,** - **Y.M.C.A.JUNCTION, ALAPPUZHA.** **9. VIMALA MATHEW, W/O.P.G.MATHEW, PAIKKATTU HOUSE, NEAR POLICE STATION CHANGANASSERRY.** **10. LEELA JOHN, W/O.JOHN MATHEW, CHOOLACKAL HOUSE, PRESS CLUB.** **11. THE TRADING COMPANY (FINANCE), MUNICIPAL OFFICE WARD, ALAPPUZHA REPRESENTED BY ITS MANAGING PARTNER, K.JOHN MATHEW PARK SIDE, HOSPITAL JUNCTION, ALAPPUZHA.** **12. DAISE JOSE, ELENJICKAL, SUBASH NAGAR, KANIYAMKULAM, KAITHAVANA, HOUSE NO.46 ALAPPUZHA (LEGAL REPRESENTATIVE OF DECEASED 6TH RESPONDENT).** **13. MARIAMMA GEORGE, SUBASH NAGAR, KANIYAMKULAM, KAITHAVANA, HOUSE NO.36 'ATHIRA', ALAPPUZHA.** **14. ANNIE GEORGE, SUBASH NAGAR, KANIYAMKULAM, KAITHAVANA, HOUSE NO.36 'ATHIRA', ALAPPUZHA.** **15. PRADEEP GEORGE, SUBASH NAGAR, KANIYAMKULAM, KAITHAVANA, HOUSE NO.36 'ATHIRA', ALAPPUZHA. (ADDITIONAL RESPONDENT 13 TO 15 ARE THE LEGAL REPRESENTATIVES OF DECEASED 7TH RESPONDENT).** **R2,12,13 BY SRI.ANIL S.RAJ R2,12,13 BY SMT.K.N.RAJANI R2,12,13 BY SRI.RADHIKA RAJASEKHARAN P. R2,12,13 BY SMT.ANILA PETER R2,12,13 BY SMT.BEENA DEVASSY R1,5 & 10 BY SRI.N.C.JOSEPH R-11 BY SRI.N.SUBRAMANIAM R-11 BY SRI.M.S.NARAYANAN R-11 BY SRI.P.T.GIRIJAN R-11 BY SMT.USHA NARAYANAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1297 of 2009 ==================================== Dated this the 24[th] day of February, 2012** ## **J U D G M E N T** This Second Appeal arises from the order on I.A. No.1721 of 2006 in O.S. No.62 of 1990 of the court of learned Additional Sub Judge, Alappuzha allowing the request of additional 8[th] defendant to pass supplementary preliminary decree consequent to the court auction sale in his favour, and the judgment and decree of learned Additional District Judge, Alappuzha in A.S. No.36 of 2007 confirming that order. 2. This Second appeal is filed on the substantial question of law whether the additional 8[th] defendant being the purchaser in court auction has any right to seek a supplementary preliminary decree or whether his remedy is to file a separate suit to purchase the property in court auction? 3. Facts which are not in dispute are as under: Plaintiffs 2 to 4 filed O.S. No.62 of 1990 on 28.03.1990 for partition and separate possession of their share in the suit property. That was followed by a preliminary decree on 13.12.1990 as per which appellant got 5/36 shares in item No.1 and 1/9 share in item No.2. **R.S.A. No. 1297 of 2009** -: 2 :- 4. While so, additional 8[th] defendant filed O.S. No.37 of 1990 on 21.02.1990 for recovery of money said to be due from the appellant/4[th] defendant. His undivided share in the suit property (stated as 1/7 share) was placed under attachment before judgment. There was a compromise in that suit and accordingly a compromise decree was passed on 15.03.1990. The additional 8[th] defendant filed E.P.No.53 of 1991 in O.S. No.37 of 1990 and the undivided share of appellant was put to court sale and purchased by him 21.01.1994. The sale was confirmed on 19.09.1994. The decree holder in O.S. No.37 of1990 filed I.A. No.503 of 2001 in O.S. No.62 of 1990 for his impleadment as additional 8[th] defendant at a time when final decree proceeding was on. Though the application was objected, it was allowed and the decree holder in O.S. No.37 of 1990 was impleaded as additional 8[th] defendant in O.S. No.62 of 1990. That was followed by additional 8[th] defendant filing I.A. No.1721 of 2006 to pass a supplementary preliminary decree in his favour in view of court auction sale in E.P. No.53 of 1991 in O.S. No.37 of 1990. That application was allowed and a supplementary preliminary decree was passed allotting the share of appellant to additional 8[th] defendant. It is that order which the appellant ## **R.S.A. No. 1297 of 2009** ## -: 3 :- challenged in A.S. No.36 of 2007 but, in vain. 5. Learned Senior Advocate appearing for appellant contended that remedy of additional 8[th] defendant was not to get impleaded in O.S. No.62 of 1990 and get a supplementary preliminary decree in his favour but to file a separate suit and seek appropriate remedy as provided under law. Reliance is placed on the decision in **M.V.S. Manikyath Rao v. M.Narasinhaswami** (AIR 1966 SC 470) and in particular, the observations made in paragraph 5. 6. Learned counsel for additional 8[th] defendant (in whose favour the impugned supplementary preliminary decree was passed) contended that the above cited decision has no application since it related to the right among co-parceners of a Joint Hindu Family which principle cannot be applied to the facts of the case. It is contended that though Section 44 of the Transfer of Property Act by itself may not apply, the principle thereunder applied to an assignee under a co-owner as well and hence such an assignee is entitled to all the equities a co-owner as against the other co-owners. It is contended that in such situation, it must be the endeavour of court to ensure that parties are not driven to multiplicity of proceedings and remedies are worked ## **R.S.A. No. 1297 of 2009** ## -: 4 :- out in the pending litigation. It is also contended by learned counsel that an assignee from co-owner in the circumstance can get impleaded in the partition suit and seek remedy. Reliance is placed on the decisions in **Ramkishore Mkedarnath v. Jainarayan Ramrachhpal** (ILR Vol.XL Calcutta 966), **Ramaswami v. venkatarama** (AIR 1924 Madras 81), **Laxminarasamma v. Ranganayakemma** (AIR 1962 Orissa 147), **Karuppan v. Ambalam** (AIR 1965 Madras 380), **Iswar Bhai C.Patel v. Harihar Behera** ([1999] 3 SCC 457) and **Rajendra Singh v. Griraj Kunwar** (2009 AIHC 801). It is pointed out by the learned counsel that appellant had filed O.S. No.45 of 2009 to set aside the decree and execution proceeding in O.S. No.37 of 1990 but that suit was dismissed with compensatory costs on 04.02.2012. Learned counsel points out that following the impugned supplementary preliminary decree, final decree was passed, that decree was put to execution and the share allotted to additional 8[th] defendant as per the supplementary preliminary decree was delivered over to him. Learned Senior Advocate for the appellant pointed out that appellant intends to challenge the decree and judgment in O.S. **R.S.A. No. 1297 of 2009** -: 5 :- No.45 of 2009 before the appropriate forum on receipt of a copy of judgment and decree in the suit. 7. The decision relied on by the learned Senior Advocate in **M.V.S. Manikyath Rao v. M.Narasinhaswami** in my view cannot govern the situation since it referred to property belonging to a Hindu Joint Family where the principle of coparcenary is involved. In such situation there will be unity of title, interest, right and possession and the right of co-parceners may be to enforce partition. That principle would not apply to the facts of this case where question of Hindu Joint Family does not arise. In this case a preliminary decree was passed and it is while final decree proceeding was pending that pursuant to the decree and execution proceeding in O.S. No.37 of 1990 additional 8[th] defendant got himself impleaded in O.S. No.62 of 1990 and obtained a supplementary preliminary decree for partition. I must notice that the order impleading decree holder in O.S. No.37 of 1990 as additional 8[th] defendant in O.S. No.62 of 1990 was not challenged and has attained finality. 8. In such a situation the principles stated by the learned counsel for additional 8[th] defendant should apply and rather than driving additional 8[th] defendant to a separate suit for ## **R.S.A. No. 1297 of 2009** **==> picture [41 x 10] intentionally omitted <==** partition, it is appropriate and necessary that he be treated as an assignee from the appellant (though by court auction sale) and is allowed to work out his remedies in pending litigation. It is in the above circumstances that the trial court passed a supplementary preliminary decree in favour of additional 8[th] defendant. That was followed by a final decree, that decree was executed and property allotted to the appellant was delivered over to additional 8[th] defendant. In the light of the factual and legal position stated above supported by the decisions cited supra, I am inclined to think that no substantial question of law is involved for a decision in this Second Appeal. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv