IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 516 of 2007()
1. KUNJUMON, S/O.LATE MATHAN KOCHUKUNJU,
... Petitioner
Vs
1. SAJEEVAN, S/O.LATE MATHAN KOCHUKUNJU,
... Respondent
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.B.KRISHNA MANI
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/02/2008
O R D E R
M.N.KRISHNAN, J.
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C.R.P. NO. 516 OF 2007
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Dated this the 5thday of February, 2008
ORDER
This revision petition is preferred with a prayer to set aside the order
in FAO 57/03 on the file of the Sub court, Kottarakara and to dismiss the
appeal.
2. A perusal of the order under challenge would reveal that the
Subordinate Judge, Kottarakara has disposed of the appeal on payment of
a cost of Rs.2,000/-. The payment was made on 28.3.07 and the appeal
was allowed. In para 4 of the judgment, the appellate court held that “at
the time of arguments the counsel for the respondent submitted that the
respondent has no objection in allowing the appeal on cost. Hence I feel it
just and proper to allow the appeal on cost.”
3. So it is on the basis of this consent, which is subsequently proved
by the receipt of the payment of cost, the suit has been directed to be
restored to file. Now, it is the settled position that when an order is passed
on consent, the ordinary remedy for the party to challenge it is to approach
the court, which passed the order, stating that there was no consent and
appraise the situation. It is not proper for the revisional court to interfere in
such matters.
C.R.P. No. 516/07 2
4. Therefore I decline to interfere with the order of the learned Sub
Judge, but leave it to the revision petitioner to move an application for
review, if he chooses to do so. The defendant in the suit filed a counter
claim which has been allowed by the court and thereby the claim of the
defendant is allowed by the court. Unless that order in the counter claim is
varied or reversed there may be the difficulty for proceeding with the suit
for the reason that principles of res judicata may apply. I am informed by
the learned counsel for the plaintiff in that suit that an appeal has been
preferred against the counter claim.
Therefore, If the case is restored to file, I direct the learned Munsiff,
where the matter will be pending, to direct the parties to submit about the
stage of the appeal against the counter claim. If there is an appeal, till the
disposal of the appeal against the counter claim, I direct the trial court not
to proceed with the suit.
The civil revision petition is disposed of accordingly.
M.N.KRISHNAN, JUDGE
vps
C.R.P. No. 516/07 3