Rosy Vs. Ouseph Varkey

Rosy vs Ouseph Varkey

Type Court Judgment Court Kerala Decided Feb 05, 2014

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https://sooperkanoon.com/case/1128793

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Citation: sooperkanoon.com/1128793
Court: Kerala High Court
Judge: Honourable Mr.Justice V.Chitambaresh
Decided On: Feb 05, 2014
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Rosy

Respondent

Ouseph Varkey

Excerpt

.....therefrom and a final decree also passed. the petitioner is not a party to the final decree passed after her deletion in appeal. the petitioner was also not made a party to the second appeal from the final decree.2. this court has noticed this 'contradiction' in the judgment in o.p.(c). no. 244/2013. the petitioner was given the option to get a final decree passed in terms of the preliminary decree to which she was a party. her application was otherwise directed to be considered under order xxi rule 97 of the code of civil procedure if the decree without her on the party array is executed. i.a. no. 1242/2012 accordingly filed by the petitioner and i.a. no. 1243/2012 for issue of commission has been dismissed by the order impugned.3. the impugned order is therefore very much appealable under order xli rule 1 read with order xxi rule o.p.(c) no. 332 of 2014 2 103 of the code of civil procedure. the petitioner apprehends that the property will be delivered over even before she obtains a copy of the decree. the appeal need be accompanied by the copy of the judgment only and not the decree after amendment. the lower appellate court shall entertain the appeal without decree and consider the prayer for interim orders.4. the delivery of the property pursuant to the orders in i.a. nos. 1242/2012 and 1243/2012 and 1812/2012 in o.s.no. 416/1975 on the file of the court of the munsiff of perumbavoor shall be put on hold for a period of one month. this is to enable the petitioner to work out her statutory remedy as indicated above. the correctness or otherwise of the order in i.a. nos. 1242/2012 and 1243/2012 and 1812/2012 shall be considered in the appeal if so filed. the original petition is disposed of. v.chitambaresh judge dcs

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE5H DAY OF FEBRUARY201416TH MAGHA, 1935 OP(C).No. 332 of 2014 (O) -------------------------- OS.NO. 416/1975 OF MUNSIFF COURT, PERUMBAVOOR ---------------------------- PETITIONER : -------------------------- ROSY,W/O.THE LATE ANTONY,AGED68YEARS, C/O.REJI C.P., CHALAYIL HOUSE, CITIZEN2D ACROSS ROAD, AYYAPPANKAVU,CRA-38,KOCHI-18. BY ADVS.SRI.V.L.SHENOY SRI.L.JAYAWANTH RESPONDENT(S): ---------------------------- 1. OUSEPH VARKEY,PUTHUSSERI @ THARIAKU, PIRARUR KARA, MANICKAMANGALAM (NOW MATTOOR VILLAGE, ALUVA, PIN-683 574.

2. OUSEPH KOCHAPPU, PUTHUSSERI @ THARIAKU, PIRARUR KARA, MANICKAMANGALAM (NOW MATTOOR VILLAGE, ALUVA, PIN-683 574.

3. OUSEPH ANTHONI, PUTHUSSERI @ THARIAKU,PIRARUR KARA, MANICKAMANGALAM (NOW MATTOOR VILLAGE, ALUVA, PIN-683 574.

4. AMMINNI,D/O. OUSEPH, PUTHUSSERI @ THARIAKU, PIRARUR KARA, MANICKAMANGALAM (NOW MATTOOR VILLAGE, ALUVA,PIN-683 574.

5. THRESSIA, W/O. POULOSE KALLUKKARAN, KIDANGOOR KARA, ANGAMALY VILLAGE, PIN-683 572.

6. ELIAMMA, D/O. OUSEPH, PUTHUSSERI @ THARIAKU, PIRARUR KARA, MANICKAMANGALAM (NOW MATTOOR VILLAGE, ALUVA,PIN-683 574. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON0502-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.332/2014 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PRELIMINARY DECREE DATED117/2007 IN A.S.NO.32/2007 OF SUB COURT, PERUMBAVOOR. P2 COPY OF THE JUDGMENT

DATED0907/2010 IN R.S.A.973/2007 OF THIS HON'BLE COURT. P3 COPY OF THE I.A.NO.1242/2012 IN O.S.NO.416/1975 OF MUNSIFF'S COURT, PERUMBAVOOR P4 COPY OF THE FINAL DECREE DATED0201/2012 IN I.A.NO.2305/2010 IN O.S.NO.416/1975 OF MUNSIFF COURT, PERUMBAVOOR P5 COPY OF THE I.A.NO.1812/2012 IN I.A.NO.1242/2012 IN O.S.NO.416/1975 OF MUNSIFF'S COURT, PERUMBAVOOR P6 COPY OF THE JUDGMENT

DATED2611/2012 IN O.P.(C)NO.4000 OF 2012 OF THIS HON'BLE COURT P7 COPY OF THE ORDER

DATED1812/2012 IN I.A.NOS.1243/2012, I.A.NO.1242/2012 AND I.A.NO.1812/2012 IN O.S.NO.416/75 P8 COPY OF THE JUDGMENT

DATED42/2012 IN OP(C).244/2013 OF THIS HON'BLE COURT. P9 COPY OF THE JUDGMENT

DATED1110/2013 IN R.S.A.57/2013 OF THIS HON'BLE COURT P10 COPY OF THE ORDER

DATED1601/2014 IN I.A.NO.20/2014 IN I.A.NO.1242/2012 IN O.S.NO.416/1975 OF MUNSIFF'S COURT, PERUMBAVOOR P11 COPY OF THE I.A.NO.21/22014 IN I.A.NO.1243/2012 IN O.S.NO.416/1975 OF MUNSIFF'S COURT, PERUMBAVOOR P12 COPY OF THE COMMON ORDER

DATED1601/2014 IN I.A.NOS.1242/2012, I.A.NO.1243/2012 AND I.A.NO.1812/2012 IN OS.NO.416/75. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts V.CHITAMBARESH,J.

------------------------------- O.P.(C) No. 332 of 2014 ----------------------------------------- Dated this the 5th day of February, 2014

JUDGMENT

The petitioner was very much a party to the preliminary decree for partition originally granted by the trial court. But then the petitioner was deleted from the party array in the appeal therefrom and a final decree also passed. The petitioner is not a party to the final decree passed after her deletion in appeal. The petitioner was also not made a party to the second appeal from the final decree.

2. This Court has noticed this 'contradiction' in the judgment in O.P.(C). No. 244/2013. The petitioner was given the option to get a final decree passed in terms of the preliminary decree to which she was a party. Her application was otherwise directed to be considered under Order XXI Rule 97 of the Code of Civil Procedure if the decree without her on the party array is executed. I.A. No. 1242/2012 accordingly filed by the petitioner and I.A. No. 1243/2012 for issue of Commission has been dismissed by the order impugned.

3. The impugned order is therefore very much appealable under Order XLI Rule 1 read with Order XXI Rule O.P.(C) No. 332 of 2014 2 103 of the Code of Civil Procedure. The petitioner apprehends that the property will be delivered over even before she obtains a copy of the decree. The appeal need be accompanied by the copy of the judgment only and not the decree after amendment. The Lower Appellate Court shall entertain the appeal without decree and consider the prayer for interim orders.

4. The delivery of the property pursuant to the orders in I.A. Nos. 1242/2012 and 1243/2012 and 1812/2012 in O.S.No. 416/1975 on the file of the Court of the Munsiff of Perumbavoor shall be put on hold for a period of one month. This is to enable the petitioner to work out her statutory remedy as indicated above. The correctness or otherwise of the order in I.A. Nos. 1242/2012 and 1243/2012 and 1812/2012 shall be considered in the appeal if so filed. The Original Petition is disposed of. V.CHITAMBARESH JUDGE DCS

Same Court & Year Kerala · 2014 Same Parties Rosy vs Ouseph Varkey Same Subject Land Acquisition Same Judge Honourable Mr.Justice V.Chitambaresh