JOY Vs. NARAYANA MENON

JUDGEMENT

(1.) This Civil Miscellaneous Petition purports to be one under O.22 R.10(1) of the Code of Civil Procedure praying that the court may be pleased to grant leave to the petitioners therein to file Second Appeal against the judgment and decree in A.S. 227 of 1990 on the file of the District Court, Palakkad. On receipt of notice of this application the contesting respondents have appeared and opposed the application. They have inter alia questioned the applicability of O.22 R.10(1) of the Code of Civil Procedure invoked by the petitioners. At the hearing Mr. K.C. John, Sr. Counsel appearing on behalf of the petitioners submitted that O.22 R.10(1) of the Code of Civil Procedure was erroneously quoted since that provision applies only when a proceeding is actually pending in the court to which the application is made and since in this case there is no pending proceeding, the permission is sought relying on S.146 of the Code of Civil Procedure and hence the petition may be treated as one under S.146 of the Code. Even as an application under S.146 of the Code of Civil Procedure it is opposed by the contesting respondents as not maintainable. It is contended that no leave could be granted to the petitioners to file the Second Appeal against the decree of the appellate court.

(2.) O.S. 183 of 1985 on the file of the Munsiff's Court of Palakkad was filed by one Thomas and one Rosamma against the contesting respondents, respondents 1 and 2 herein. The suit was one for the perpetual injunction restraining the contesting respondents from entering the plaint B Schedule property and from using any portion of the plaint B schedule property as a way and for the mandatory injunction directing them to remove a gate newly constructed on the north south wall of their property. The suit was resisted by the contesting respondents and by judgment and decree dated 30.6.1990 the suit was decreed. The contesting respondents, defendants in the suit filed an appeal before the District Court challenging the decree. The appeal was filed oh 17.11.1990. The plaintiffs were the respondents in the appeal. On 24.8.1991 while the appeal was pending, plaintiff No. 2 in the suit who was allegedly the owner of the property claimed to be the servient tenament assigned the property to one Thressia Rabeiro as per document No. 2920 of 1991. Thressia Rabeiro made no attempt to come on record in the pending appeal before the District Court by invoking O.22 R.10 of the Code of Civil Procedure. On 15.9.1993 Thressia Rabeiro in her turn sold the property to the present petitioners. The present petitioners also made no attempt to get themselves impleaded in the pending appeal before the District Court. The appeal before the District Court proceeded with the original plaintiffs on the array of parties. By judgment and decree dated 20.12.1997, the lower appellate court allowed the appeal and reversing the decree of the Trial Court dismissed the suit filed by the plaintiffs, assignors of the assignor of the petitioners. The plaintiffs in the suit applied for a certified copy of the judgment and decree of the lower appellate court and obtained the same on 12.6.1998. According to the petitioners these certified copies were handed over to them by the plaintiffs in the suit, respondents in A.S. 227 of 1990 before the District Court and since as assignee from the plaintiffs they feel aggrieved by the judgment and decree passed by the lower appellate court, they are filing the Second Appeal before this court. Since they are not eo-nominee parties in the appeal before the appellate court, they have filed C.M.P. 1975 of 1998 seeking permission to file the Second Appeal. It may incidentally be noted that the appeal filed against the judgment and decree of the District Court is filed in time going by the endorsements in the judgment and decree of the appellate court produced with the Memorandum of Second Appeal.

(3.) The first aspect to be considered is whether the petitioners are entitled to take advantage of the endorsements in the certified copies of the judgment and decree applied for and obtained by the respondents in the appeal before the District Court. The decision of this Court in Oommen v. Moran Mar Baselius Mar Thoma Mathews ( 1984 KLT 553 ) as affirmed by the Supreme Court in Oommen v. Moran Mar Baselius Marthoma Mathews ( 1992 (2) KLT 293 (SC)) indicates that a person other than the one who applied for and obtained the certified copies of the judgment and decree may not be entitled to take advantage of the endorsements in the judgment and decree so as to say that the appeal filed by him was within time. But in this case the Second Appeal is sought to be filed not by another party to the decree using the copies obtained by some other party but the Second Appeal is sought to be filed by the assignee from the respondents in the appeal. Of course the assignee is not a direct assignee but is an assignee from an assignee of the respondent in the appeal. Since the assignee or an assignee from the assignee steps into the shoes of the party to the decree and is bound by the decree, it is possible to say that the principle of the decision referred to above may not apply to the present case. This is not a case where he was already on the array of parties and was affected by the decree and was trying to file an appeal not on the basis of the copies applied for and obtained by him but taking advantage of the copies obtained by a co-defendant or a corespondent in the appeal as was the position in the decision referred to above.