IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 66 of 2006()
1. CHERADATH C. BALAN, AGED 57 YEARS,
... Petitioner
Vs
1. SHYAMALA SATHYAN, AGED 51 YEARS,
... Respondent
2. SATHYAN, AGED 53 YEARS,
For Petitioner :SRI.AVM.SALAHUDIN
For Respondent :SRI.JESWIN P.VARGHESE
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/11/2007
O R D E R
P.R. RAMAN & V. K. MOHANAN, JJ.
= = = = = = = = = = = = = = = = = = = =
F.A.O. NOS. 88 & 66 OF 2006
= = = = = = = = = = = = = = = = =
DATED THIS, THE 21ST DAY OF NOVEMBER, 2007.
J U D G M E N T
Raman, J.
The appellant in F.A.O.88/2006 is the decree holder in O.S. 212/2004
which was a suit filed by the wife against the husband for realisation of
money due, which was eventually decreed, though ex parte. Before the
judgment, the property belonging to the husband was attached. Subsequent
to the decree, on a third party claim for lifting the attachment, the court
below suo motu reviewed its own decree holding that this is a family
dispute and as such only the Family Court has jurisdiction and so the decree
is a nullity. After setting aside the decree, the plaint was ordered to be
returned for presenting before appropriate court. Aggrieved thereby, the
appellant has preferred this appeal.
2. In view of the above order passed by the court below, the
application for lifting the attachment was also dismissed against which the
third party claimant has filed F.A.O.66 of 2006. Both the appeals are thus
inter-connected and arising from the same order and hence heard together.
3. The appellant in F.A.O. 66/2006 would contend that the court
FAO NOS: 88 & 66/06 :2:
below has no power to suo motu review a decree passed and to return the
plaint. He also contended that the property in question admittedly
belonged to the husband and therefore, there is no dispute with regard to the
title thereto and that being a money suit against the husband for realisation
of money based on a decree ultimately that may be passed , the property
was attached and the suit itself was decreed. Being a money suit, it cannot
be said to be beyond the jurisdiction of the civil court. Therefore, the
question as to whether the court below has got suo motu power to review
the decree, arises for consideration.
4. As per Section 114 of the Code of Civil Procedure, any person
considering himself aggrieved can approach the court seeking review of the
judgment/order, provided no appeal therefrom is preferred or no appeal
will lie against the said judgment/order. The power of review is a
conferment by the Statute and the court has no inherent power of review as
held by the apex court in P.N. THAKERSHI V. PRADYUMANSINGJI
(AIR 1970 SC 1273) Power is conferred under the section and the court
can exercise the power subject to restrictions imposed thereunder. On a
plain reading of the section, it can be seen that the power of review is
conferred on the court only when review is sought for by an aggrieved
FAO NOS: 88 & 66/06 :3:
person. Admittedly, no such person who is said to be aggrieved has
approached the court below seeking a review. As such, the court below
could not have suo motu reviewed the decree passed by it. A learned
Judge of this Court in Mohankumar v. Natarajan ( 1998 (1) KLT 310)
held that under Order 47 Rule 1 CPC an application for review will lie by an
aggrieved party, but the court cannot review its own order or decree suo
motu in the absence of any such application. We agree with the said view
expressed by the learned Single Judge. In the circumstances, we hold that
the order passed by the court below suo motu reviewing the decree is
without jurisdiction and hence it is set aside. The question as to whether
the decree is a nullity or not in the circumstances, does not arise for
consideration.
5. The court below shall pass fresh orders in I.A. 2079/2005 after
hearing both sides. The court below has not given any valid reason as to
why the claim petition is not maintainable and no reasons are stated. In the
circumstances, the order dismissing the petition as not maintainable is
wrong. The court may pass appropriate orders after hearing both sides.
6. Even though the learned counsel appearing for the appellant
submitted that a petition is maintainable even after passing the decree and
FAO NOS: 88 & 66/06 :4:
placed reliance on the decision in J. Rama Murthy v. Srinivas
Corporation General Merchants & Commission Agents (AIR 1989 AP
58), we find that what was held in that decision is that the proceeding can
be continued when an application for lifting the attachment is already filed.
Admittedly, in this case, the application is filed only after the decree is
passed and therefore, the principle in Rama Murthy’s case (supra) will
not apply. In the circumstances, the matter is remitted to the court below
for reconsideration.
P.R. RAMAN,
(JUDGE)
V. K. MOHANAN,
(JUDGE)
knc/-