High Court of KeralaSingle Judge2024-06-04These Civil Revision Petitions are accordingly ...

V.S. Babu v. Tahira Sayed Mohammed and Others

Case / Petition Number:CRP Nos. 257 of 2023 & 260 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dr. Kauser Edappagath
Judgment Date: 2024-06-04
Court Decision / Holding: The Civil Revision Petitions are dismissed with liberty to the petitioner to challenge the decree and judgment dated 20.10.2020 in O.S. No.7/2006 and O.S. No.923/2008 before the appellate court. The time spent pursuing the review applications can be condoned by the appellate court as laid down in Rahimal Bathu v. Ashiyal Beevi.
Final Disposition: These Civil Revision Petitions are accordingly dismissed with liberty to challenge the decree and judgment dated 20.10.2020 in O.S. No.7/2006 and O.S. No.923/2008 before the appellate court. The time spent pursuing the review applications can be condoned by the appellate court as laid down in the above decision.

Parties to the Case

Appellants / Petitioners

V.S. Babu

Respondents

Tahira
Suhara Sayed Mohammed
Azeez
Saju Jacob
Mercy Saju
Sunil Kumar
Jasmine Joseph
Biju Mathew
Jolly T.G
Mercy Francis

Legal Representation & Advocates

Counsels for Petitioners

• Manu Vyasnan Peter
• P.B.Krishnan
• P.B.Subramanyan
• Sabu George
• B.Anusree
• Meera P.
• Aiswarya Mohan

Counsels for Respondents

• P.A.Abdul Jabbar
• Sulfia M.A.
• Muhammed Shaffi
• Shahim Bin Aziz
• Ehlas Haleema C.K.
• Abdul Jaleel A

Case Synopsis & Summary

This is a Kerala High Court judgment by a Single Judge (Dr. Kauser Edappagath) dated 4 June 2024, dealing with two Civil Revision Petitions, CRP Nos. 257 of 2023 and 260 of 2023, filed by the revision petitioner, V.S. Babu, who is the 2nd defendant in O.S. No.7/2006 and the plaintiff in O.S. No.923/2008, both partition suits in the trial court. The core issue concerns the maintainability of review petitions against a common decree dated 20 October 2020 passed by the Additional Sub Court I, Ernakulam, which, after remand by this Court in OP(C) No.2867/2017, decreed O.S.7/2006 and dismissed O.S.923/2008 in a consolidated judgment. The trial court’s judgments were sought to be reviewed under the review petitions filed as RP No.3/2021 and RP No.5/2021, which were rejected by the trial court. The petitioner argued, citing Supreme Court authority (Rahimal Bathu v. Ashiyal Beevi, 2023 LiveLaw (SC) 829), that where a decree is appealable, revision under Section 115 CPC is not maintainable and the proper remedy is appeal. The High Court agreed with the proposition, dismissing the revision petitions with liberty to challenge the 20 October 2020 decree in an appeal, and condoning any delay in filing such an appeal by the appellate court. The order ends with a directive to pursue appellate remedies while treating the review petitions as unsustainable.

Provisions of Law Cited

Order 41 CPCSection 115 CPCCode of Civil Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner’s counsel conceded that review petitions are not maintainable inasmuch as the impugned decree and judgment are appealable under Order 41 CPC. The counsel invoked the recent Supreme Court ruling in Rahimal Bathu v. Ashiyal Beevi (2023 LiveLaw (SC) 829) to argue that where a decree is appealable, Section 115 CPC revision petitions should not be entertained. The proper remedy, therefore, is to file an appeal against the decree dated 20.10.2020; if time-barred, the appellate court may condone the delay and proceed with the appeal. The contention emphasizes converting the remedy from revision to appeal and relies on the principle that revision should not stand in the way of an effective appellate challenge to a decree.

Contentions of Respondents

The document records that both sides were heard, but explicit opposing arguments from the respondents are not detailed beyond the court noting the petitioner's concession. The respondents’ position appears to be consistent with the governing principle that if a decree is appealable, the appropriate remedy is an appeal rather than a revision, aligning with the cited Rahimal Bathu decision and the court’s ultimate disposition to dismiss the revisions with liberty to file an appeal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rahimal Bathu and others v. Ashiyal Beevi	2023 LiveLaw (SC) 829	Positive	The Supreme Court decision is cited to support the proposition that where a decree is appealable, revision under Section 115 CPC should not be entertained; the proper remedy is appeal, with possible condonation of delay by the appellate court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## **`CRP NO. 257 OF 2023`** ``` AGAINST THE ORDER DATED 29.03.2023 IN RP NO.5 OF 2021 IN O.S. NO.923/2008 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT,ERNAKULAM ``` ## **`REVISION PETITIONER/PETITIONER IN RP/PLAINTIFF:`** ``` V.S.BABU AGED 57 YEARS S/O. SAYED MUHAMMED,HOUSE NO.36/1074 DAYA MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017 BY ADVS. MANU VYASAN PETER P.B.KRISHNAN(K/1193/1994) P.B.SUBRAMANYAN(K/1145/2009) SABU GEORGE(K/000711/1998) B.ANUSREE(K/000951/2016) MEERA P.(K/000191/2019) AISWARYA MOHAN(K/274/2020) ``` ## **`RESPONDENTS/RESPONDENTS IN RP/DEFENDANTS:`** ``` 1SUHARA SAYED MOHAMMED AGED 75 YEARS W/O. LATE SAYED MOHAMMED, HOUSE NO.43/2560. ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI 682 018 AND ALSO RESIDING AT HOUSE NO.36/1074 DAYA MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017 ``` - **`2 C.S. TAHIRA AGED 58 YEARS W/O. AZEEZ, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI, PIN - 682018`** - **`3 AZEEZ AGED 65 YEARS S/O ABDU, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,`** 2 **CRP No.257 of 2023 & CRP No.260 of 2023** ## **`MASJID LANE, KOCHI, PIN - 682018`** - **`4 SAJU JACOB AGED 57 YEARS`** ``` S/O JACOB, CHAKKALAKKAL HOUSE, 36/836-A, AMBEDKAR COLONY, KALOOR, ERNAKULAM, KOCHI -682017. ALSO HAVING ADDRESS AT CHAKKALAKKAL HOUSE, THRIKKANARVATTOM KARA, ERNAKULAM NORTH P.O, PIN - 682018 ``` ## **`5 MERCY SAJU AGED 56 YEARS`** ``` W/O SAJU JACOB, CHAKKALAKKAL HOUSE, 36/836- A, AMBEDKAR COLONY, KALOOR, ERNAKULAM, KOCHI - 682017. ALSO HAVING ADDRESS AT CHAKKALAKKAL HOUSE, THRIKKANARVATTOM KARA, ERNAKULAM NORTH P.O, PIN - 682018 ``` ## **`6 SUNIL KUMAR AGED 53 YEARS`** ``` NEEHARAM, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -682017 ALSO HAVING ADDRESS AT NEEHARAM, T.C 8/734, GOWRI NAGAR, PONGAMOODU, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM, PIN - 695011 ``` ## **`7 JASMINE JOSEPH AGED 46 YEARS`** ``` W/O JOLLY T.G, VATTASSERIL HOUSE, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI - 682017.ALSO HAVING ADDRSS AT VATTASSERIL HOUSE, ULLOOR, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM, PIN - 695011 ``` ## **`8 BIJU MATHEW AGED 48 YEARS`** - **`S/O K.J.MATHEW, MULLAPPILLIL HOUSE, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -682017 AND ALSO HAVING ADDRESS AT MULLAPPILLIL HOUSE, MURICKASSERY P.0, VATHIKUDY VILLAGE, UDUMBANCHOLA, IDUKKI, PIN - 685604`** - **`9 JOLLY T.G AGED 53 YEARS`** ``` S/O K.M.GEORGE, THOPPIL HOUSE, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI - 682017 AND ALSO HAVING ADDRESS AT THOPPIL HOUSE, THAIKATTUKARA, ALUVA, ERNAKULAM, PIN - 683106 ``` 3 **CRP No.257 of 2023 & CRP No.260 of 2023** ## **`10 MERCY FRANCIS`** ``` AGED 60 YEARS W/O FRANCIS PARAYIL HOUSE, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -682017 AND ALSO HAVING ADDRESS AT PARAYIL HOUSE, THAIKATTUKARA, ALUVA, ERNAKULAM, PIN - 683106 ``` ``` BY ADVS. SULFIA M.A P.A.ABDUL JABBAR MUHAMMED SHAFFI(K/1201/2012) SHAHIM BIN AZIZ(K/557/2016) EHLAS HALEEMA C.K.(K/001446/2021) ABDUL JALEEL.A(K/166/2003) ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04.06.2024, ALONG WITH CRP.260/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 **CRP No.257 of 2023 & CRP No.260 of 2023** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## **`CRP NO. 260 OF 2023`** ``` AGAINST THE ORDER DATED 29.03.2023 IN R.P. NO.3/2021 IN OS NO.7 OF 2006 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT, ERNAKULAM ``` ## **`REVISION PETITIONER/PETITIONER IN RP/2ND DEFENDANT:`** ``` V.S.BABU AGED 57 YEARS S/O. SAYED MUHAMMED, HOUSE NO.36/1074 DAYA MANZIL JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017 BY ADVS. ``` ``` MANU VYASAN PETER P.B.KRISHNAN(K/1193/1994) P.B.SUBRAMANYAN(K/1145/2009) SABU GEORGE(K/000711/1998) B.ANUSREE(K/000951/2016) MEERA P.(K/000191/2019) AISWARYA MOHAN(K/274/2020) ``` ## **`RESPONDENTS/RESPONDENTS IN RP/PLAINTIFF & 1ST DEFENDANT:`** - **`1 C.S. TAHIRA AGED 58 YEARS W/O. AZEEZ, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI, PIN - 682018`** - **`2 SUHARA SAYED MOHAMMED AGED 75 YEARS W/O. LATE SAYED MOHAMMED, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI AND PRESENTLY RESIDING AT HOUSE NO.36/1074 DAYA`** 5 **CRP No.257 of 2023 & CRP No.260 of 2023** ``` MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI 682017., PIN - 682018 BY ADVS. P.A.ABDUL JABBAR SULFIA M.A. MUHAMMED SHAFFI(K/1201/2012) SHAHIM BIN AZIZ(K/557/2016) EHLAS HALEEMA C.K.(K/001446/2021) ABDUL JALEEL.A(K/166/2003) ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04.06.2024, ALONG WITH CRP.257/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 6 **CRP No.257 of 2023 & CRP No.260 of 2023** ## **Dated this the 4[th] day of June, 2024** ## **ORDER** ## **`[CRP Nos.257/2023 & 260/2023]`** The common order passed by the Additional Sub CourtI, Ernakulam (for short ‘the trial court’) in R.P. No.3/2021 in O.S. No.7/2006 and R.P. No.5/2021 in O.S. No.923/2008 are under challenge in the above Civil Revision Petitions. 2. The petitioner herein is the 2[nd] defendant in O.S. No.7/2006 and the plaintiff in O.S. No.923/2008 in the trial court. Both suits are for partition. Both the judgments were challenged before this Court in O.P.(C) No.2867/2017. This Court as per the Judgment dated 05.03.2019 set aside the judgment and decree dated 06.03.2010 and remanded the matter to the trial court for fresh disposal. Thereafter, by common judgment, dated 20.10.2020 the trial court decreed O.S. No.7/2006 and dismissed O.S. No.923/2008. Instead of challenging those decree and judgment in first appeal, the petitioner filed review petitions as R.P. No.3/2021 and R.P. 7 **CRP No.257 of 2023 & CRP No.260 of 2023** No.5/2021 before the trial court. The trial court dismissed both those review petitions as per the impugned order. ## 3. Heard both sides. 4. The learned counsel for the petitioner fairly concedes that the review petitions are not maintainable inasmuch as the impugned decree and judgment in the review petitions are appealable under Order 41 of the Code of Civil Procedure. The learned counsel for the petitioner has invited my attention to the latest decision of the Supreme Court in **Rahimal Bathu and others vs. Ashiyal Beevi** [2023 LiveLaw (SC) 829]. In the said judgment, it was held that where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of the CPC against an order rejecting on merits a review of that decree. The proper remedy for the party whose application for review of an appealable decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the appeal is rendered barred by time, the time 8 **CRP No.257 of 2023 & CRP No.260 of 2023** spent in diligently pursuing the review application can be condoned by the court to which an appeal is filed. In view of the dictum laid down in the above decision, these Civil Revision Petitions are dismissed with liberty to the petitioner to challenge the decree and judgment dated 20.10.2020 in O.S. No.7/2006 and O.S. No.923/2008 before the appellate court. The time spent in diligently pursuing the review applications can be condoned by the appellate court as laid down in the above decision. These Civil Revision Petitions are accordingly dismissed with the above observations. ## **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** BR