PURUSHOTHAMAN P Vs. P SAROJINI

JUDGEMENT

(1.) It started as a suit for partition - OS No. 213 of 1991 filed by the petitioner in the Court of learned Munsiff, Varkala. He demanded partition and separate possession of his 2/15 shares in the suit property. The 2nd respondent - 2nd defendant claimed her share and separate possession and paid Court fee for the same. It is said that the 8th respondents / 9th defendant who had 5/15 shares in the suit property transferred his right to the 1st respondent - 1st defendant as per registered gift deed No. 500 of 1975. Learned Munsiff passed a preliminary decree on 28/01/1993 allotting shares as pleaded by petitioner and other defendants. After the preliminary decree was passed, it is claimed by petitioner that he acquired the 5/15 shares of the 1st respondent - 1st defendant (which 1st respondent got as per the gift deed in question) as per sale deed No. 1074 of 1994 dated 21/03/1994. Petitioner filed IA No. 740 of 1994 to pass a supplementary preliminary decree taking note of the 5/15 shares he acquired from the 1st respondent - 1st defendant who acquired it from the 8th respondent - 9th defendant. Application was resisted by the contesting defendants. The 8th respondent - 9th defendant denied execution of the gift deed in favour of the 1st respondent - 1st defendant. Learned Munsiff recorded evidence on IA No. 740 of 1994 (I am told that since execution of gift deed was denied by the 8th respondent - 9th defendant, document was sent to the Expert for opinion on the thump impression and the Expert gave a report that the thump impression appearing in the gift deed is that of the 8th respondents defendant). Learned Munsiff heard IA No. 740 of 1994 and came out with order dated September 20, 2002 holding that the claim made by the petitioner is not required to be adjudicated in an application for passing a supplementary preliminary decree since execution of the gift deed is denied by the 8th respondent - 9th defendant. Learned Munsiff took the view that the dispute is to be settled in a separate suit and dismissed IA No. 740 of 1994.

(2.) Petitioner challenged that order in CRP No. 2443 of 2002. That Civil Revision came before me for hearing on August 19, 2011. Maintainability of the civil revision challenging the correctness of the order refusing to pass a supplementary preliminary decree was canvassed. Learned counsel for contesting respondents argued that the Civil Revision is not maintainable and the remedy available to the petitioner was by way of appeal treating the order refusing to pass supplementary preliminary decree as a decree as defined in S.2(2) of the Code of Civil Procedure. Learned counsel placed reliance on various authorities.

(3.) When faced with the above situation, learned counsel for petitioner pointed out that it is within the power of this Court to convert the Civil Revision into a Petition under Art.227 of the Constitution. Learned counsel contended that since the order passed by the learned Munsiff is apparently illegal and since so many years have passed by after the impugned order was passed it is unjust to direct petitioner to file a separate appeal which involve huge delay and asking him to find out explanation for the said delay. Learned counsel placed reliance on certain decisions in support of his contention.