IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 114 of 2007()
1. P.J.AVIRAH, S/O.JOSEPH, AGED 45 YEARS,
... Petitioner
2. T.P.DEVASIA, S/O.POULOSE, AGED 49 YEARS,
3. IDUKKI DISTRICT CONGRESS COMMITTEE OF
Vs
1. VIJAYAMMA, W/O.LATE DHANANJAYAN,
... Respondent
2. DHANYA, D/O.LATE DHANAJYAYAN,
3. DIVYA, D/O.LATE DHANJAYAN, AGED 29,
4. JOSE KUTTIANI, AGED BOUT 62 YEARS,
5. K.J.JOHN,AGED ABOUT 77 YEARS,
6. C.N.SOMARAJAN, D.C.C.GENERAL SECRETARY,
7. MATHEW, S/O.PAILY, CHANTHANIYIL
8. CHERIYAN, S/O.AUGUSTINE,
9. FRANCIS, S/O.ULAHANNA,
For Petitioner :SRI.JOICE GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 114 OF 2007
............................................
DATED THIS THE 5th DAY OF JULY, 2007
JUDGMENT
Plaintiffs in O.S.221 of 1993 on the file of Sub Court,
Kattappana are appellants. Defendants are respondents.
Appellants instituted the suit seeking a decree for declaration
that the decree and judgment obtained in O.S.35 of 1978 is
fraudulent and collusive and not binding on the plaintiffs and for
a permanent prohibitory injunction restraining respondent from
realising the decree debt due under the said decree. The case of
appellant was that Idukki District Congress Committee office is
one among the assets of Indian National Congress party and it is
a three storeyed concrete building constructed by the party and
on 18.1.1999 a proclamation of sale was issued by the court for
realisation of decree debt in O.S.35 of 1978 on the file of Sub
Court, Kottayam in E.P. 236 of 1988 and on enquiry it was found
that the decree was fraudulently obtained by first respondent
against respondents 2 and 3 and during the trial respondents 2
and 3 filed a consent statement and the decree was obtained and
it is alleged that the decree is collusive and void and as it was
passed without AICC in the party array appellant is entitled to
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get the declaration and injunction. First respondent filed a
written statement contending that the suit is barred by limitation
and O.S.35 of 1978 was instituted in 1978 and at the time of
filing the suit, sufficient notice was given to appellants and
general public and there was publication of notice under Order I
Rule 8 of Code of Civil Procedure and nobody appeared or
contested the suit except respondents 2 and 3 and when the
liability was admitted, the suit was decreed and it is not vitiated
by fraud and collusion and appellant is not entitled to the decree
sought for.
2. Learned Sub Judge framed the necessary issues. On the
evidence of PW1 and DW1 and Exts.A1 to A6, learned Sub Judge
held that the decree in O.S.35 of 1978 on the file of Sub Court,
Kottayam was fraudulent or collusive and the decree and
judgment is not binding on the DCC Idukki or Indian National
Congress and granted a decree that the decree in O.S.35 of
1978 is not valid and binding on appellant or the DCC or Indian
National Congress
3. Plaintiffs challenged the decree and judgment before
District Court, Thodupuzha in A.S.82 of 1997. Learned
Additional District Judge, on reappreciation of evidence, set
RSA 114/2007 3
aside the findings of learned Sub Judge and allowed the appeal
and dismissed the suit. It is challenged in the second appeal.
4. Learned counsel appearing for the appellant was heard.
The argument of the learned counsel was that O.S.35 of 1978
was filed by first respondent against respondents 2 and 3 and it
was a suit under Order I Rule 8 and as evidenced by Ext.A2,
statement filed by respondents 2 and 3 and Ext.A4, the
judgment, decree was granted only on admission of defendants
and therefore it is a decree as provided under Rule 3B of Order
XXIII of Civil Procedure Code and as the conditions provided
under Rule 3B of Order XXIII was not complied with, even
though the suit was filed under Order I Rule 8, first appellate
court should have found that the decree in O.S.35 of 1978 is
collusive and void and not valid and binding on appellant or the
AICC or the DCC. It was also argued that when all assets of the
Congress party belongs to AICC without impleading AICC,
decree should not have been granted and for that reason also
courts below should have found that the decree in O.S.35 of
1978 is not valid and binding on AICC.
5. On hearing learned counsel appearing for appellant, I do
not find any substantial question of law involved in the appeal.
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O.S.35 of 1978 was filed for realisation of the amount due to first
respondent for being the cost of construction of the building for
the DCC. That suit was filed against the Idukki DCC represented
by the then DCC President and Secretary. Suit was filed under
Rule 8 of Order I of Code of Civil Procedure. There is no case
that sufficient publication was not effected. Defendants appeared
and thereafter filed a written statement. In the written
statement, they admitted the liability. The liability which was
admitted was the liability to pay the cost of construction, of the
building for the DCC. As the plaint allegations are admitted,
suit was decreed by the trial court. It cannot be said that that is
a decree as provided under Rule 3B of Order III as canvassed by
learned counsel appearing for appellant. It was a decree
granted by the court on the basis of written statement filed by
defendants whether they admitted the plaint claim. Even though
publication was effected, none of the members of the Congress
party including appellants intervened in that suit and got
themselves impleaded and resisted the suit. In such
circumstances it cannot be said that O.S.35 of 1978 was filed
fraudulently or that the decree is vitiated by fraud or collusion
as canvassed by appellant. First appellate court considered the
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evidence in the proper perspective and granted a decree. No
substantial question of law is involved in the appeal.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-