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2025 Supreme(Online)(Ker) 38168
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. NATARAJAN, J
SARASAMMA AGED 65 YEARS W/O VASU, PUTHENPURAYIL, THIRUVANCHOOR KARA, MANARCADU VILLAGE. KOTTAYAM TALUK KOTTAYAM DISTRICT – Appellant
Versus
RAJU AGED 60, S/O LATE MADHAVAN, PUTHENPURAYIL, THIRUVANCHOOR KARA, MANARCADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT – Respondent
OP(C) NO. 1453 OF 2025
For the Appellants/Petitioners: SRI.PRAFIN JOSEPH ZACHARIA, SMT.PRASEENA ELIZABETH JOSEPH, SRI.JOSEKUTTY MATHEW
For the Respondents:
Court emphasized that alternate legal remedies must be pursued in trial court before seeking High Court intervention.
Headnote:(A) Civil Procedure Code, 1908 - Order 41 Rule 1, Order 41 Rule 5 - Decree by the Trial court challenged - Petitioners contend that the counter claim was decreed despite the absence of the tenth defendant - The petitioners are allowed to appeal against the counter claim as it constitutes an appealable decree. (Paras 2 & 3)
(B) Remedies available - The petitioners must utilize available remedies under the CPC rather than approach the High Court under Article 227 of the Constitution, emphasizing judicial economy and proper legal procedure. (Para 3)
Facts of the case:
The petitioners, in a suit where they are defendants, challenge the decree passed in favor of the plaintiff, who is the wife of the tenth defendant, along with the counter claim decreed against them despite the absence of any evidence from the tenth defendant.
Findings of Court:
The petition is dismissed as the petitioners have alternative avenues for remedy, specifically the right to appeal against the counter claim within the district court.
Issues: Whether petitioners can proceed with an appeal against a counter claim they were not directly involved in, and if the High Court should intervene under Article 227 of the Constitution despite alternative remedies being available.
Ratio Decidendi: The court holds that where alternate remedies under the CPC exist, the petitioners cannot compel the High Court to interfere in the decree. The petition should be dismissed in favor of jurisdictional propriety.
Result: Petition dismissed with liberty granted to the petitioners to pursue an appeal.
| Table of Content |
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| 1. challenge against the original decree and counter claim. (Para 1) |
| 2. discussion on legal remedies available under cpc. (Para 2) |
| 3. court decision highlighting jurisdictional propriety. (Para 3) |
The Original petition is filed by the petitioners as against the decree passed by the Trial court in O.S.No.848/2016 dated
29.03.2025.
2. The learned counsel for the petitioners submits that the petitioners are defendant Nos.1 to 3 in the suit, wherein the tenth defendant said to be filed a counter claim in the very same Suit and the tenth defendant not entered in the witness box and not laid any evidence but the Trial court decreed the suit of the plaintiff who is none other than the wife of the tenth defendant and also decreed the counter claim as against this defendants. Therefore, it is submitted he has already challenged the original decree by filing the appeal A.S.No. 66/2025 but not filed the any appeal against the decree of the counter claim and the plaintiff stating he is not party to the counter claim hence he is before this court. Considering the submission made by the learned counsel, once the decree passed by the Munsiff court or Trial court it is appelable decree under Order 41 Rule 1 of C.P.C/96 of C.P.C and he can also file an application for staying execution operation of the preliminary decree by filing application under order 41 Rule 5 of C.P.C. Even a decreeing the counter claim also in appellable under order 41. Such being the case even though the plaintiff/petitioner who said to be defendants in the original decree, were not party the counter claim but they can also file appeal with leave of the court. Therefore, when alternate remedies available for the petitioner before the district court for filing the appeal as against the decreeing the counter claim, the petitioner cannot force this this court under 227 of the Constitution of India.
3. Such being the case, the petition is devoid of merit and to be dismissed. Accordingly, this petition is dismissed. Liberty granted to the petitioner to file appeal before this same court and seek remedy in the appeal. He also permitted to file application for staying the operation of the preliminary decree or counter claim in the same court. The said court, if any such application filed, the district court shall consider the urgency of the parties.
