High Court Kerala High Court

P.J.Avirah vs Vijayamma on 5 July, 2007

Kerala High Court
P.J.Avirah vs Vijayamma on 5 July, 2007
       

  

  

 
 
  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

RSA 114/2007 2

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.

RSA 114/2007 4

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

RSA 114/2007 5

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/-