Aji Kumar and Anithakumari v. B. Rajalakshmi and others (OP(C) No.2126/2011, Kerala High Court)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 2126 of 2011(O) ------------------------EA NO.260/2011 IN EP NO.230/2003 IN OS.252/1974 of III ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONERS ------------------------------- 1. AJI KUMAR, S/O.SUKUMARAN, HINDU, AGED 38 YEARS, RESIDING AT CHERUVILAGAM VEEDU, ANIL BHAVAN, T.C.NO.1465, SHARMA ROAD, KUMARAPURAM, TRIVANDRUM. 2. ANITHAKUMARI, D/O.SUKUMARAN, ANIL BHAVAN, CHERUVILAKATHU VEEDU, KUMARAPURAM, PATTOM VILLAGE, TRIVANDRUM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENT(S): - --------------- 1. B.RAJALAKSHMI, CHERIYA PATTOOR HOUSE, VANCHIYOOR.P.O., TRIVANDRUM. 695 035. 2. L.RAJENDRAN, CHERIYA PATTOOR HOUSE, VANCHIYOOR.P.O., TRIVANDRUM. 695 035. 3. L.RAJ MOHAN, CHERIYA PATTOOR HOUSE, VANCHIYOOR.P.O., TRIVANDRUM. 695 035. 4. S.RAJAMANI, D/O.LEKSHMAN, CHERIYA PATTOOR HOUSE, VANCHIYOOR.P.O., TRIVANDRUM. 695 035. 5. L.RADHAKRISHNAN, S/O.LAKSHMAN, CHERIYA PATTOOR HOUSE, VANCHIYOOR.P.O., TRIVANDRUM. 695 035. OP(C) NO.2126/2011 2 6. L.RAVIKUMAR, S/O.LAKSHMAN, CHERIYA PATTOOR HOUSE, VANCHIYOOR.P.O., TRIVANDRUM. 695 035. 7. ANIL KUMAR, S/O.SUKUMARAN, - ANIL BHAVAN, CHERUVILAKATHU VEEDU, KUMARAPURAM, TRIVANDRUM. 695 035. 8. UDAYAKUMAR, AGED 52, KAKODUMUDAMPIL HOUSE, NOW RESIDING AT TC.NO.30/694 PETTAH, CHURCH ROAD, TRIVANDRUM. 695 035. 9. CHANDRAKUMAR, S/O.RAJAPPAN, KAKODUMUDAMPIL HOUSE, NOW RESIDING AT TC.NO.30/694 PETTAH, CHURCH ROAD, TRIVANDRUM. 695 035. 10. SREEKALA, D/O.RAJAPPAN, KAKODUMUDAMPIL HOUSE, NOW RESIDING AT TC.NO.30/694 PETTAH, CHURCH ROAD, TRIVANDRUM. 695 035. 11. SREELATHA, D/O.RAJAPPAN, KAKODUMUDAMPIL HOUSE, NOW RESIDING AT TC.NO.30/694 PETTAH, CHURCH ROAD, TRIVANDRUM. 695 035. ADV. SHRI L.MOHANAN FOR R1 TO R6 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.2126/2011 ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE ORDER DATED 28.1.2003 EXT.P2 TRUE PHOTOCOPY OF THE DECREE DATED 28.1.2003 EXT.P3 TRUE PHOTOCOPY OF THE JUDGMENT DATED 7.10.2010 EXT.P4 TRUE PHOTOCOPY OF THE E.P.NO.230/2003 IN OS NO.252/1974 EXT.P5 TRUE PHOTOCOPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER IN EA NO.260/2011 IN EP NO.230/2003 IN OS 252/1974 EXT.P6 TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE SECOND RESPONDENT EXT.P7 TRUE PHOTOCOPY OF THE ORDER ON EA NO.260/2011 DATED 25.6.2011 //TRUE COPY// P.A. TO JUDGE ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.2126 of 2011 -------------------------------------Dated this the 8[th] day of July, 2011.** ## **JUDGMENT** Petitioners are the legal representatives of third defendant in O.S.No.252 of 1974 of the court of learned Munsiff, Thiruvananthapuram. Respondents 1 to 6 got a degree for redemption of mortgage over plaint A schedule with the third defendant, predecessor-in-interest of petitioners also on record and as the learned counsel for respondents 1 to 6 would submit, the preliminary decree was challenged upto the Supreme Court but was confirmed. The second stage of the challenge was in respect of the final decree, which was confirmed by this Court in R.S.A.No.901 of 2005. The challenge to the final decree ended there. Respondents 1 to 6 initiated execution proceeding and sought redemption of mortgage and delivery of plaint A schedule. At that stage petitioners (legal representatives of the third defendant) filed E.A.No.260 of 2011 (in E.P.No.230 of 2003 in O.S.No.252 of 1974) contending that the bunk shop which they are occupying is not liable to be removed in view of the observations this Court has made in the judgment in R.S.A.No.901 of 2005. Respondents 1 to 6 filed Ext.P6, objection to that application contending that petitioners have no legal right to raise any such contention and that at the time of filing the suit the alleged bunk shop was situated towards middle of plaint B schedule but later it was shifted towards north to obstruct delivery of property. Executing court passed Ext.P7, order dated June 25, 2011. It felt bound by the preliminary and final decrees **OP(C) No.2126/2011** 2 and observed that objection raised by petitioners cannot stand. Accordingly their objection was overruled and delivery was ordered. That order is under challenge. Learned counsel for petitioners contend that the executing court has not referred to the direction in the judgment in R.S.A.No.901 of 2005. It is also the submission of learned counsel that there is no material on record to substantiate the contention of respondents 1 to 6 that the bunk shop occupied by petitioners (and before them, their predecessor-in-interest, the third defendant) was shifted to the northern side of plaint B schedule as contended in Ext.P6, objection. It is the contention of learned counsel that in appropriate case it is open to the executing court to go behind the decree and look into the pleadings and proceedings leading upto the decree. Learned counsel has placed reliance on the decision in **Bhavan Vaja and others v. Solanki** ## **Hanuji Khodaji Mansang and another (AIR 1972 SC 1371)** . 2. Learned counsel for respondents 1 to 6 contended that so far as respondents 1 to 6 are concerned it is a hard-earned decree obtained after heavy contest and different stages in different courts. Even in the course of execution there were objections and carried to the appellate court and ultimately all objections were overruled. At that stage petitioners approached the executing court with E.A.No.260 of 2011 to obstruct delivery. It is pointed out by learned counsel that at no point of time there was any objection to redemption of mortgage of plaint A schedule and delivery of the said item which included the five feet pathway along the northern side of plaint B schedule which is clear **OP(C) No.2126/2011** 3 from the description of property in Ext.P6 which included the said pathway on the northern side. It is pointed out by the learned counsel that at no point of time the predecessor-in-interest of petitioners (third defendant) had a contention that the bunk shop where petitioners and their predecessor-in-interest are/was doing business is situated in any portion of the said five feet wide pathway. In the circumstances, petition is without merit, it is submitted. 3. I have been referred to the observations made by this Court while disposing of R.S.A.No.901 of 2005. It is not disputed before me that third defendant (predecessor-in-interest of petitioners) was a party in the R.S.A. In paragraph 7 of the judgment, this Court observed that respondents 9 to 11 in the R.S.A. claimed to be tenants in occupation of five cents of property not covered by the mortgaged property (obviously referring to the decree schedule B item) and that their counsel raised an apprehension that under the decree for redemption (of decree A schedule) their occupation is under threat of eviction and that they were unnecessarily impleaded in the suit. At that stage, learned counsel for respondents 1 to 6 submitted in the R.S.A. that the five cents in which the said respondents (respondents 9 to 11) were in occupation is not covered by the mortgage and that under the decree their right of tenancy is no way impaired though such tenancy is subject to termination as per the provisions of law. It was conceded on behalf of appellants and respondents 1 to 6 in R.S.A. that respondents 9 to 11 in the said appeal were unnecessary parties to the suit for redemption and their tenancy claim over the buildings in **OP(C) No.2126/2011** 4 occupation is not in any way covered by the adjudication involved in the suit. It is the above said observations that learned counsel for petitioners relied upon to contend that respondents 1 to 6 cannot claim right over the bunk shop situated on the northern side of plaint B schedule. 4. To appreciate that, it is necessary to refer to the order of learned Munsiff on I.A.No.2284 of 1989 (application for final decree). There, in paragraph 9, it is stated that so far as objection of defendants 2 and 3 (third defendant is the predecessor-in-interest of petitioners herein) it is stated in paragraph 6 of the plaint that B schedule does not form part of the mortgaged property and hence there is no reason for any apprehension for defendants 2 and 3 regarding their lease hold right in respect of that property. 5. Now I must refer to the decree schedule. A schedule is 15 cents forming part of the 20 cents towards its western side, together with the five feet way along the northern side of the five cents (which is described in plaint B schedule). In the B schedule, it is specifically stated that the said item excludes the said path way having width of five feet. Thus, it is clear that the way having width of five feet along the northern side of B schedule formed part of plaint A schedule. It is in the above circumstances that learned Munsiff and this Court in Second Appeal observed that the decree for redemption of plaint A schedule which took in the way having five feet width along northern side of B schedule did not affect tenancy right of respondents 9 to 11 in the Second Appeal. I do not find anything to show that at any point of time except in **OP(C) No.2126/2011** 5 E.A.No.260 of 2011 either petitioners or their predecessor-in-interest had pointed out that any portion of the tenanted building is situated on the five feet wide way referred to in express terms in plaint A and B schedules. If that be so, observations made by the learned Munsiff in the order on I.A.No.2284 of 1989 and the direction made by this Court in R.S.A. cannot relate to the plaint A schedule which takes in five feet wide way along northern side of plaint B schedule. 6. True that at the time of institution of suit no commission was taken out by either parties to report on the location of the building. But as I pointed out, neither petitioners nor their predecessor-in-interest raised a contention that any portion of the tenanted building is situated on the five feet wide way referred to above. Viewed in that line the objection raised by petitioners cannot be accepted. As such the order of executing court on E.A.No.260 of 2011 does not call for interference. 7. Learned counsel for petitioners submitted that petitioners may be granted some time in case they wished to approach the Supreme Court in challenge of this judgment and in the meantime a direction may be issued to the executing court to keep the proceeding in abeyance. Having regard to the circumstances I am inclined to direct the executing court to keep in abeyance delivery proceedings over the way having width of five feet along northern side of plaint B schedule and referred to in plaint A schedule. Resultantly this Original Petition is dismissed. But the executing court is **OP(C) No.2126/2011** 6 directed to keep the delivery proceedings in respect to the pathway having width of five feet referred to in plaint A schedule and situated on the northern portion of plaint B schedule in abeyance for a period of one month from this day. **THOMAS P.JOSEPH, Judge.** ## **cks**