RAMESH KUMAR Vs. RAJASEKHARAN UNNITHAN

JUDGEMENT

(1.) Respondent No.1 appears through counsel. For respondent No.2/defendant, notice has been served on the counsel appearing for him in the trial court which is sufficient service under Rule 59 of the Rules of High Court of Kerala, 1971.

(2.) This Writ Petition is in challenge of Ext.P7, order passed by the learned Sub Judge, Kottarakkara on Ext.P5, application (I.A.No.130 of 2010) filed in C.M.A.No.32 of 2009 seeking permission to convert the C.M.Appeal into a regular appeal against dismissal of a claim petition. Respondent No.1 filed O.S.No.131 of 2008 in the court of learned Munsiff, Kottarakkara for recovery of money against respondent No.2. In that proceeding there was an attachment ordered by the learned Munsiff. Petitioner made a claim for the property attached. That claim was dismissed against which petitioner preferred C.M.A.No.32 of 2009 before learned Sub Judge, Kottarakkara. Learning that C.M.Appeal is not maintainable and dismissal of the claim petition is to be challenged by way of a regular appeal petitioner filed I.A.No.130 of 2010 to convert the C.M.Appeal into a regular appeal. That application was dismissed vide Ext.P7, order holding that there is no provision in the Code of Civil Procedure (for short, "the Code") to allow the application and that inherent power under Section 151 of the Code is to be exercised with respect to the procedure to be followed by the court in deciding the case before it. According to the learned Sub Judge petitioner is not entitled to convert the C.M.Appeal into a regular appeal. It is contended that the view taken by the learned Sub Judge is not correct.

(3.) I am inclined to agree with the learned counsel. It is not as if the court lacked power to convert a C.M.Appeal into a regular appeal. In Bahori v. Vidya Ram (AIR 1978 Allahabad 299) it was held that it is within the power of the court to convert a revision into an appeal and vice versa. If that be so there is no reason to think that a C.M.Appeal cannot be converted into a regular appeal subject to payment of court fee as prescribed by the relevant provisions. I find no reason why I.A.No.130 of 2010 should not be allowed. Resultantly this Writ Petition is allowed in the following lines: