IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19708 of 2009(O)
1. VIJAYENDRAN.P., S/O.PARAMESWARAN,
... Petitioner
2. BINDHU, W/O.VIJAYENDRAN,
Vs
1. SIVANANDAN, S/O.MANICKAN PILLAI,
... Respondent
2. VIJAYAN, S/O.MADHAVAN,
3. CANARA BANK, CANTONMENT ROAD,
For Petitioner :SRI.VPK.PANICKER
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :14/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 19708 OF 2009 O
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Dated this the 14th day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:-
“(i) Issue appropriate order calling for
the records leading to Ext.P7 order and set aside
the same;
(ii) Allow OP(TP) No.40/09 before the
District Court, Thiruvananthapuram to transfer
Ext.P1 suit to the II Additional Subordinate
Judge’s court, or vice versa.”
2. Petitioners are the plaintiffs in two suits, namely,
OS.No.499/05 pending on the file of the I Additional Sub Court,
Thiruvananthapuram, and the other OS.No.1030/08 of the II
Additional Sub Court, Thiruvananthapuram. OS.No.499/05 is a
suit for foreclosure of a mortgage and the other suit
OS.No.1030/8, a suit for refund of advance money paid under an
agreement of sale. Plaintiffs moved for an application under
section 24 of the CPC for transfer of both the suits to one of the
courts for joint trial, before the District Court. The 3rd respondent,
WPC.19708/09
: 2 :
in favour of which a mortgage over the property covered by the
suits had earlier been created by the first respondent, objected to
the transfer requested for. The learned District Judge, after
hearing both parties, dismissed the application for transfer.
Impeaching the propriety and correctness of the order dismissing
the transfer petition, the writ petition has been filed invoking the
supervisory jurisdiction vested with this court under Article 227 of
the Constitution of India.
3. I heard the learned counsel for the petitioner. Having
regard to the submissions made and taking note of the facts and
circumstances presented, I find no notice to the respondent is
necessary, and hence it is dispensed with. The first and foremost
question to be considered is whether the two suits can be jointly
tried as desired by the petitioner, the plaintiff in both the suits. The
suit for foreclosure of mortgage is governed by Order 34 of CPC
which contemplates an entirely different procedure to be followed
in the decree to be passed after trial from the other suit i.e., suit
for refund of the advance money under the agreement of sale.
Such being the position, needless to point out the joint trial of the
WPC.19708/09
: 3 :
suits cannot be permitted under law. Then, the learned District
Judge has also noticed that the petition for transfer was moved at
a time when one of the cases came up in the special list for trial
and also that the 3rd respondent Bank had already initiated
proceedings under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, for
realising the debt due to the Bank availed on the security of the
mortgage, the subject matter involved in both the suits. In the
facts and circumstances, I find no impropriety or illegality in the
order passed by the learned District Judge and the writ petition is
dismissed.
(S.S. SATHEESACHANDRAN, JUDGE)
aks