A.V.Chandralekha vs Mohankumar

Type Court Judgment Court Kerala Decided Jul 10, 2023

~4 min read

https://sooperkanoon.com/case/1345879

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/1345879
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Jul 10, 2023
Case Number: CRP/131/2012

Parties & Advocates

Appellant / Petitioner

A.V.Chandralekha

Respondent

Mohankumar

Excerpt

.....having come up for admission on 10.07.2023, the court on the same day delivered the following:o r d e ra decree for declaration of title and recovery of possession was granted presumably based on a settlement deed executed by her mother lakshmikutty amma during her life time. it was upheld by the trial court and granted a decree in favour of the plaintiff as against the other siblings, defendant nos.1 to 6. during the pendency of the suit, 6th defendant passed away and it was not brought to the notice of the court. in fact, the 1st and 2nd defendants did not contest the suit. the defendants 7 to 9 are the children of one deceased brother of the plaintiff. the 3rd defendant also remained ex- parte in the trial court. it is after the passing of the decree when it was put in execution, the 3rd defendant who remained ex-parte came up with an objection to the e.p based on order 22 rule 4(4) that decree is a nullity on account of the death of 6th defendant. in fact, the decree is not a nullity even though the 6th defendant passed away during the course of suit. the other defendants were contesting the suit for their common identical interest. since there is substantial representation by the other defendants who is having identical common interest in the suit, the decree is executable. it cannot be brought under the purview of nullity. the impugnedorder hence will stand set aside by restoring thee.p on the file of the trial court with a direction to the execution court to execute the decree within a time schedule of three months from the next posting date for which the parties shall appear before the trial court on 20.07.2023. this crp will stand allowed accordingly. sd/- p.somarajan judge lek

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 10TH DAY OF JULY 2023 / 19TH ASHADHA, 1945 (AGAINST THE ORDER IN E.P.250/2009 IN OS 201/1997 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD)
PETITIONER/PETITIONER: A.V.CHANDRALEKHA W/O.CHANDRASEKHRAN, 11TH CROSS STREET, INDIRANAGAR, ADAYAR, CHENNAI, TAMILNADU. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS RESPONDENTS/RESPONDENTS 2 TO 9: 1 MOHANKUMAR(DIED) S/O.THANKAM @ LAKSHMIKUTTY AMMA, TOWN END, PUTHUR AMSOM, PALAKKAD - 678 005. *LR's IMPLEADED AS ADDL.R10 & R11 12 A.V.UNNI NARAYANAN (DIED) S/o.LATE M.VASUDEVA MENON, SRI LAKSHMI, N.G.O.QUARTERS, MERYKUNNU, KOZHIKODE-673001 *LR'S IMPLEADED AS ADDL.R9 3 A.V.JAYAKUMAR DWARAKA APARTMENT, FLAT No.401,100 FEET ROAD, INDIRA NAGAR, BANGALORE-560038 4 A.V.RAVINDRAN, S/o.LATE VASUDEVA MENON C.304, 9TH CROSS 1ST STAGE, INDUSTRIAL ESTATE, PINIYA, BANGALORE-560031 5 A.V.GOPINATH (DIED) S/o.LATE VASUDEVA MENON, PUTHUR AMSOM, PALAKKAD-678005 *LR'S IMPLEADED AS ADDL.R12 6 JADADHEESH S/o.LATE SANTHAKUMARI PUTHUR AMSOM, PALAKKAD-678005 7 ASHA D/o.CHANDRALEKHA, FLAT No.10, P.A.APARTMENT, 2ND MAIN ROAD, 31-GANDHI NAGAR, ADAYAR, CHENNAI-600018 8 ANAND S/o.CHANDRALEKHA FLAT NO.20, P.A.APARTMENT, 31 GANDHI NAGAR, ADAYAR, CHENNAI-600018 ADDL.R9 SANTHOSH
S/o.LATE A.V.UNNI NARAYANAN AGED ABOUT 50 YEARS, RESIDING AT 'SREELAKSHMI' NGO QUARTERS, MERIKUNNU, KOZHIKODE-673012 *ADDL.R9 IS IMPLEADED AD THE LEGAL HEIR OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 03.10.18 IN I.A.960/15
ADDL.R10 SUDHA 401, EMBASSY GRACE, RICHARDS TOWN, BANGALORE-560084 ADDL.R11 NAVEEN ANTHUR EMBASSY GRACE, RICHARDS TOWN, BANGALORE-560084 *ADDL.R10 AND R11 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 03.10.18 IN I.A.2512/2016 ADDL.R12 ANITA ANTHUR D/o.LATE A.V.GOPINATH, BURROW 1455, SOUTH St.PAUL, MINNESOTA, ARIZONA 85206, U.S.A *ADDL.R12 IS IMPLEADED AS LEGAL HEIR OF DECEASED 5TH RESPONDENT AS PER ORDER DATED 3.10.18 IN I.A.2511/2016.
BY ADVS. SRI.BINOY VASUDEVAN SRI.M.DEVESH SRI.BINOY VASUDEVAN SRI.M.DEVESH SRI.R.MANIKANTAN THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O R D E R

A decree for declaration of title and recovery of possession was granted presumably based on a settlement deed executed by her mother Lakshmikutty Amma during her life time. It was upheld by the trial court and granted a decree in favour of the plaintiff as against the other siblings, defendant Nos.1 to 6. During the pendency of the suit, 6th defendant passed away and it was not brought to the notice of the court. In fact, the 1st and 2nd defendants did not contest the suit. The defendants 7 to 9 are the children of one deceased brother of the plaintiff. The 3rd defendant also remained ex- parte in the trial court. It is after the passing of the decree when it was put in execution, the 3rd defendant who remained ex-parte came up with an objection to the E.P based on Order 22 Rule 4(4) that decree is a nullity on account of the death of 6th defendant. In fact, the decree is not a nullity even though the 6th defendant passed away during the course of suit. The other defendants were contesting the suit for their common identical interest. Since there is substantial representation by the other defendants who is having identical common interest in the suit, the decree is executable. It cannot be brought under the purview of nullity. The impugned

order hence will stand set aside by restoring the

E.P on the file of the trial court with a direction to the execution court to execute the decree within a time schedule of three months from the next posting date for which the parties shall appear before the trial court on 20.07.2023. This CRP will stand allowed accordingly. Sd/- P.SOMARAJAN JUDGE LEK

Same Court & Year Kerala · 2023 Same Parties A.V.Chandralekha vs Mohankumar Same Judge Honourable Mr. Justice P.Somarajan