SANKARAN NADAR THANKARAJAN NADAR Vs. SURESH KUMAR @ SURENDRAN

JUDGEMENT

(1.) Challenge in the appeal is against the Order of remand passed in A.S. No. 28/2012 by the learned Sub Judge, Neyyattinkara. Short facts necessary for disposal of the appeal can be summed up thus:

(2.) I heard counsel on both sides. At the threshold itself learned counsel for applicant (first respondent in the appeal) fairly submitted that the application as framed and filed before Munsiff may not lie under law once a final decree had already been passed in the suit. But, in the given facts and circumstances of the case and especially in view of the observations/directions given in the original petition already disposed by this Court applicant should be given an opportunity either to seek withdrawal of that application with liberty to file a proper petition in accordance with law or to amend the prayers canvassed in the petition already filed, is the plea of counsel. Submissions made by counsel for applicant as above are resisted by learned counsel for appellants contending that the very application and also the appeal preferred challenging the order of learned Munsiff are not entertainable under law. Considering the submissions made and taking note of the facts and circumstances presented, I find the question whether the supplementary decree and final decree passed can be assailed by petitioners on the challenge canvassed by him referable to the death of his predecessor has not been considered by learned Munsiff whatever be the way he framed and filed this application. If the application was not entertainable for the reason that it was moved after passing of final decree in the suit, it should have invited an order of rejection. An order of rejection would not have effected his right to ventilate his grievance if he has any other remedy under law taking appropriate proceedings. But, by the orders passed by both the Courts below, the applicant has been denied of opportunity to canvass his challenge that the decree is a nullity for the reason that it had been passed against a dead person, his predecessor. I am not adverting to the Order passed by learned Munsiff and also judgment of Sub Judge on the various aspects addressed before them since I find that the application should have received rejection without going into the merits when no Court could have entertained such application for passing a supplementary preliminary decree after passing of a final decree in the suit. After passing of final decree, it may be open to any person aggrieved by such decree to impeach it as vitiated by fraud, if he has justifiable grounds to do so, to seek for setting aside that decree. If the decree was a nullity for the reason that it had been passed against a dead person, then, the application should be one for setting aside the final decree and not for passing a supplementary final decree. Passing of a supplementary preliminary decree would arise only if the final decree already passed is set aside accepting the case that it is nullity. When that be the case, I find the order of remand de hors the findings made by learned Sub Judge has to be retained giving the applicant a chance either to seek permission to withdraw his application or for moving an amendment application to mould the reliefs as requested by his counsel. I am not expressing any opinion over the entitlement of applicant to seek withdrawal or for amending the reliefs canvassed in the petition, which, if canvassed of, has to be decided by learned Munsiff on its merits after hearing the parties in the proceedings. If application as represented by counsel for petitioner, either for withdrawal or amendment is moved within a period of thirty days from the date of this judgment, learned Munsiff shall consider and decide it expeditiously after providing an opportunity to the respondents to raise their objections to such application, and also hearing both sides in the matter. If no such application as indicated is filed by the applicant within the time fixed by the applicant, then it would entail the dismissal of his application.