Vijayamma vs Ayyappan Pillai and Shaji K.V. and Mini

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945** **EX.SA NO. 4 OF 2024** **AGAINST THE JUDGMENT AND DECREE DATED 05.11.2022 IN AS NO.26 OF** **2020 OF DISTRICT COURT, THODUPUZHA** **ARISING OUT OF THE ORDER IN EA NO.151/2019 IN EP NO.36 OF 2016 IN** **OS NO.347/2013 OF MUNSIFF COURT, KATTAPPANA** **APPELLANT/APPELLANT/CLAIM PETITIONER:** **VIJAYAMMA AGED 55 YEARS W/O MOHANAN, PUTHUPARAMBIL HOUSE, POTHINKANDAM KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT, PIN - 685609 BY ADVS. MADHU RADHAKRISHNAN NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR** ## **RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS 1 AND 2:** **1 AYYAPPAN PILLAI AGED 51 YEARS S/O SUBRAMANIAN PALACKAL HOUSE, KUZHITHOLU KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT, PIN - 685551 2 SHAJI K.V AGED 54 YEARS S/O BHASKARAN, KALLOLICKAL HOUSE, POTHINKANDAM KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT, PIN - 685609 3 MINI AGED 50 YEARS W/O SHAJI , KALLOLICKAL HOUSE, POTHINKANDAM KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT, PIN - 685609** **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EX.SA NO. 4 OF 2024** **2** ## **JUDGMENT** Dated this the 5[th] day of March, 2024 This Execution Second Appeal filed under Section 100 read with Order XXI of the Code of Civil Procedure, 1908 is at the instance of the claim petitioner who filed E.A.No.151/2019 in E.P.No.36/2016 in O.S.No.347/2013 on the files of the Munsiff's Court, Kattappana. The respondents herein are the decree holder as well as the judgment debtors 1 and 2. 2. Heard the learned counsel for the appellant on admission. Perused the verdicts under challenge. 3. I shall refer the parties in this execution second appeal with reference to their status before the trial court. The appellant will be referred as “claim petitioner” and the respondents will be referred as “decree holder” and “judgment debtors”. **EX.SA NO. 4 OF 2024** **3** 4. In a suit between the decree holder and judgment debtors, decree was passed and property having an extent of 20 cents belonged to the judgment debtor put in execution and accordingly, the same was proceeded and reached the stage of delivery. In the meanwhile, one Vijayamma, who is none other than the sister of the judgment debtors, filed a petition under Order XXI Rule 97 of CPC contending that 15 cents out of 20 cents of property belonged to the claim petitioner, which was put in possession by her mother. Thus, by merely raising plea of possession, claim petition was filed. 5. The decree holder filed objection stating that judgment debtors are in possession of the property and the judgment debtors obstructed the delivery. According to the decree holder, the present petition is a gimmick to avoid delivery in a properly proceeded execution petition. 6. The trial court recorded evidence of the claim petitioner as PW1. On appraising the evidence in paragraph No.6, the trial court found that the claim petition is found to **EX.SA NO. 4 OF 2024** **4** be meritless and was dismissed. The observation of the execution court in paragraph No.6 is as under: _“_ _**6. Point nos. 1 and 2 :-** The specific case of the petitioner is that the petition schedule property comprised of 20 cents of land including the 15 cents put in possession of her by the mother. The petitioner was examined as PW1. Defying her own version, during cross examination she deposed that the property is owned by the judgment debtors. She also deposed that the mother settled the property in favour of the Judgment Debtor. It is also deposed by her that the parents promised to give her the possession of the 20 cents of land but has not given to her till date.”_ 7. It is pointed out by the learned counsel for the appellant/claim petitioner that going by the judgment of the first appellate court, the grievance of the claim petitioner was not addressed and the appellate court addressed grant of compensatory cost by the execution court and finally, grant of compensatory cost was interfered with and set aside. The **EX.SA NO. 4 OF 2024** **5** learned counsel would submit that the first appellate court should have appraised the contention on merits, otherwise, and therefore, the said judgment would require interference by admitting the same. 8. On reading paragraph No.7 of the appellate court judgment, it seems that the appellate court proceeded with the appeal, negating the other contentions, though not in specific terms, by addressing the grant of compensatory cost alone. It is true that the first appellate judgment does not depict reasons for rejecting the plea of possession, found against by the execution court. 9. On reading paragraph No.6 of the order of the execution court, extracted hereinabove, the same would indicate that the claim petitioner, who got examined as PW1, admitted that the property is owned by the judgment debtors and the mother settled the property in favour of the judgment debtors. That apart, she admitted that the parties promised to give her possession, but possession not given till the date **EX.SA NO. 4 OF 2024** **6** of her examination. Thus it is clear that the claim petitioner never been in possession of the plaint schedule property, as contended and therefore, the claim petition is found to be devoid of any merits, as rightly found by the trial court as well as the appellate court. Therefore, the concurrent verdicts do not require any interference by this Court. 10. 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 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.”_ **EX.SA NO. 4 OF 2024** **7** 11. Section 100 of the C.P.C. 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 says that nothing in this sub-section 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 **EX.SA NO. 4 OF 2024** **8** question of law, not formulated by it, if it is satisfied that the case involves such question. 12. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 13. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge** Bench) _,_ as under: _For an appeal to be maintainable under Section_ **EX.SA NO. 4 OF 2024** **9** _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._ 14. 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 the C.P.C., 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 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 **EX.SA NO. 4 OF 2024** **10** 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 the C.P.C. must be complied to admit and maintain a second appeal. 15. 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. 16. Accordingly, this execution second appeal stands dismissed, without being admitted, as indicated above. 17. All interlocutory orders stand vacated and all interlocutory applications pending in this execution second **11** **EX.SA NO. 4 OF 2024** appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr