A.K.Karthikeyan Alunkal v Pushpa Balan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935** **OP(C).No. 3739 of 2013 (O) ---------------------------** **AGAINST THE JUDGMENT IN AS 15/2013 of SUB COURT, CHERTHALA AGAINST THE JUDGMENT IN OS 455/1990 of PRL.MUNSIFF COURT, CHERTHALA** **PETITIONER(S):** **--------------** **A.K.KARTHIKEYAN ALUNKAL, CHERTHALA SOUTH MURI, CHERTHALA PO.** **BY ADV. SRI.J.OM PRAKASH** **RESPONDENT(S): --------------** **1. PUSHPA BALAN, W/O.A.K.BAHULEYAN NARAYANA COMPOUND, N.G.ROAD 6TH CROSS ATTAVAR MANGALORE, KARNATAKA, PIN-575 001.** **2. KARUNAKAR S/O. A.K.BAHULEYAN, NARAYANA COMPOUND N.G.ROAD 6TH CROSS ATTAVAR, MANGALORE, KARNATAKA PIN-575 001.** **3. VIJAYALAKSHMI D/O. A.K.BAHULEYAN, NARAYANA COMPOUND N.G.ROAD, 6TH CROSS ATTAVAR, MANGALORE, KARNATAKA PIN-575 001.** **4. KALAVATHI NARAYANA COMPOUND N.G.ROAD, 6TH CROSS ATTAVAR, MANGALORE, KARNATAKA PIN-575 001.** **5. SHANMUKHAN, S/O.KELAPPAN PUTHENVELIYIIL, MAYITHARA MARKET PO, CHERTHALA 688539** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RKC** ## **OP(C).No. 3739 of 2013 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------** **EXT.P1 - TRUE COPY OF THE COMMISSION REPORT AND PLANS IN O.S.NO.455/90 FILED BY ADVOCATE THEJOMAYI THAMPURATTY DATED 17-102006.** **EXT.P2 - TRUE COPY OF THE COMMON ORDER IN I.A.NO.3561/2007 AND I.A.NO.3563/2007 IN O.S.NO.455/90 DATED 12-3-2013 OF THE PRINCIPAL MUNSIFFS COURT, CHERTHALA.** **EXT.P3 - TRUE COPY OF THE ORDER IN I.A.NO.2278/2006 IN O.S.NO.455/90 OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA DATED 12-3-2013** **EXT.P4 - TRUE COPY OF THE ORDER IN IA.1968/2004 IN O.S.NO.455/90 OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA DATED 12-3-2013** **EXT.P5 - A TRUE COPY OF THE ORDER DATED 12-3-2013 IN I.A.NO.2911/2007 IN O.S.NO.455/90 OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA DATED 12-3-2013** **EXT.P6 - TRUE COPY OF THE MEMORANDUM OF APPEAL - AS NO.15/2013 DATED 20-5-2013 BEFORE THE SUB COURT, CHERTHALA.** **EXT.P7 - TRUE COPY OF THE E.P.NO.108/2013 IN O.S.NO.455/90 OF THE MUNSIFF'S COURT, CHERTHALA.** **EXT.P8 - TRUE COPY OF THE ORDER IN E.P.NO.108/2013 IN O.S.NO.455/90 OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA DATED 22-10-2013** **EXT.P9 - TRUE COPY OF THE STAY PETITION IE. IA.1167/2013 FILED IN AS.NO.15/2013 DATED 25-10-2013.** **EXT.P10 - TRUE COPY OF THE OBJECTION IN O.S.455/90 FILED BY THE PETITIONER.** **EXT.P11 - TRUE COPY OF THE EA.NO.337/2013 IN E.P.108/13 IN O.S.NO.455/90 DATED 23-10-2013.** **EXT.P12 - TRUE COPY OF THE ORDER IN EA.NO.337/2013 IN E.P.108/13 IN O.S.NO.455/90 DATED 25-10-2013 OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA.** ## **RESPONDENT(S)' EXHIBITS: NIL** ## **RKC** ## **TRUE COPY** **PA TO JUDGE** ## **P.N.RAVINDRAN, J.** ## **------------------------------O.P.(C).No.3739 of 2013 --------------------------------Dated this the 28[th] day of October, 2013** ## **JUDGMENT** The plaintiff in O.S.No.455 of 1990 on the file of the Court of the Principal Munsiff of Cherthala had filed I.A.No.1968 of 2004 for the passing of a final decree for partition. While that application was pending he died and thereupon respondents 1 to 4 herein were impleaded as additional petitioners 2 to 5 in the said application. In the final decree proceedings, an Advocate Commissioner was appointed to inspect the plaint schedule property and to submit a report. The Advocate Commissioner appointed in the final decree proceedings submitted Ext.P1 report dated 17.10.2006 accompanied by a sketch. She allotted from item No.1 plot LCDEJKL having an extent of 17.886 cents as agreed upon between the parties to the share of the plaintiff. The Advocate Commissioner has in page 4 of her report referred to the fact that the plaintiff had agreed to give up his claim over the buildings situate in plaint schedule item No.1. From out of the plaint schedule item No.2, plot ABCDEFDA having an extent of 9.33 cents was allotted to the share of the plaintiff as shown in Ext.C1 A sketch. From out of plaint item No.3 plot AGEFA as shown in Ext.C3(c) having an extent of 6 cents was allotted to the plaintiff's share. As on the date on which the O.P.(C).No.3739 of 2013 ..2.. Advocate Commissioner filed her report defendants 1 and 2 had not applied for separate allotment of their share. The Advocate Commissioner had also reported that though in the decree schedule item No.1 is shown to have an extent of 50 cents, on measurement it was found that it has an extent of 53.65 cents, that 1/3[rd] share of the said 53.65 cents has been allotted to the share of the plaintiff. She had also reported that the buildings situate in item No.1 were excluded as agreed to by the plaintiff so as to enable the buildings to be allotted to the share of the defendants. She made a similar statement in respect of item No.2 also. As regards item No.3 she reported that the only building therein is a thatched shed which bears door No.XVII/18 of Cherthala Municipality. 2. The second defendant filed objections to the Commissioner's report. He had in the meanwhile filed I.A.No.2278 of 2006 for the passing of a supplementary preliminary decree consequent on the death of the third defendant. In the objections, the principal contention raised was that the lie and extent of the plaint schedule property has not been correctly noticed by the Advocate Commissioner. He later filed I.A.No.3563 of 2007 to set aside the report and plan submitted by the Advocate Commissioner appointed in the final decree proceedings. I.A.No.3563 of 2007 to set aside the report and plan submitted by the Advocate Commissioner, I.A.No.2278 of 2006 for the passing of a O.P.(C).No.3739 of 2013 ..3.. supplementary preliminary decree and I.A.No.1968 of 2004, the application filed by the plaintiff and continued by his legal heirs for the passing of a final decree for partition were heard on 12.3.2013. On that day, the trial court after considering the rival contentions passed Ext.P4 final decree for partition accepting the report and plan submitted by the Advocate Commissioner. The trial court also allowed I.A.No.2278 of 2006 and passed a supplementary preliminary decree whereby the share of the parties was enhanced from 1/4[th] each to 1/3[rd] each. I.A.No.3563 of 2007 filed by the second defendant to set aside the plan and report submitted by the Advocate Commissioner was dismissed by Ext.P2 order passed on 12.3.2013. 3. Challenging the final decree, the petitioner has on 20.5.2013 filed A.S.No.15 of 2013 on the file of the Court of the Subordinate Judge of Cehrthala. The principal contention raised therein was that the trial court did not grant him adequate opportunity to adduce evidence on the application filed by him to set aside the plan and report. He did not however file an application seeking stay of execution of the final decree for partition which was passed on 12.3.2013. Since the appellate court did not pass an interim order staying the execution of the final decree, respondents 1 to 4 filed E.P.No.108 of 2013 to execute the final decree. The said application was filed on 1.7.2013. The petitioner and the first O.P.(C).No.3739 of 2013 ..4.. defendant received notice on the said application and entered appearance on 24.8.2013. They did not however file objections to the execution petition. An order of stay had also not been passed by the appellate court staying the execution of the final decree. As a result thereof when the execution petition came up for consideration on 22.10.2013, the execution court directed the Amin to effect delivery of the property allotted to the share of the plaintiff in the final decree for partition passed on 12.3.2013. Two days thereafter, the petitioner filed I.A.No.1167 of 2013 in A.S.No.15 of 2013 wherein he prayed for stay of further proceedings in E.P.108 of 2013 in O.S.455 of 1990. He also filed E.A.337 of 2013 in E.P.108 of 2013 under Order XXI rule 26 of the Code of Civil Procedure wherein he prayed for stay of execution of the decree till the disposal of A.S.No.15 of 2013. The execution court considered E.A.No.337 of 2013 and dismissed it by Ext.P12 order passed on 25.10.2013. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India wherein the petitioner prays for an order directing the execution court to keep further proceedings in E.P.No.108 of 2013 in O.S.No.455 of 1990 until disposal of A.S.No.15 of 2013 or I.A.No.1167 of 2013 therein. 4. I heard Sri.J.Omprakash, learned counsel appearing for the petitioner and Sri.V.L.Shenoy, learned counsel appearing for O.P.(C).No.3739 of 2013 ..5.. respondents 1 to 4. Sri.J.Omprakash, learned counsel appearing for the petitioner contended that the petitioner has challenging the final decree for partition passed on 12.3.2013 filed A.S.No.15 of 2013 that the principal contention raised therein is that the trial court did not permit him to adduce evidence in support of I.A.No.3563 of 2013 or consider the objections filed by him to the report and plan submitted by the Advocate Commissioner, that the second defendant did not along with the appeal file an application for stay of execution of the final decree as the decree holders had not levied execution at that point of time, that later when the decree holders took steps to execute the decree, an application for stay of execution of the final decree was filed in the appeal accompanied by an application under order XXI rule 26, that under the supplementary preliminary decree defendants 1 and 2 are also entitled to 1/3[rd] share in the properties and in such circumstances unless pending disposal of A.S.No.15 of 2013 the execution of the final decree is stayed, the petitioner will put to serious prejudice. Per contra, Sri. V.L.Shenoy, learned counsel appearing for respondents 1 to 4/decree holders contended that the suit was instituted in the year 1990, that it was resisted by brothers of the plaintiff who denied the status of the plaintiff, that the trial court accepted the said contention and dismissed the suit, but the decree dismissing the suit was reversed and a preliminary decree was O.P.(C).No.3739 of 2013 ..6.. passed on 18.7.2001 by the appellate court, that the preliminary decree has attained finality, that even under the supplementary preliminary decree which was passed consequent on the death of the third defendant the plaintiff is entitled to 1/3[rd] share in the plaint schedule property, that the identity of the plaint schedule property is not in dispute, that Ext.P1 report submitted by the Advocate Commissioner appointed in the final decree proceedings would show that it was after excluding the buildings situate in item No.1 and 2 that allotment was made by the Advocate Commissioner, that the allotment made by the Advocate Commissioner is just and fair and causes no prejudice to any of the parties and that no exception can be taken to the allotment made by the Advocate Commissioner. Referring to Ext.P1 report submitted by the Advocate Commissioner, learned counsel for respondents 1 to 4 contended that the Advocate Commissioner has in that report referred to the fact that the properties set apart in the share of the plaintiff as also the remaining properties have adequate road frontage and that the plaintiff had given up his claim over the building situate in item No.1. Learned counsel for respondents 1 to 4 contended that it is evident from the conduct of the petitioner in not applying for stay of execution of the decree in the appeal filed by him from the final decree and his conduct in not filing objections to the execution petition and moving the appellate court and the execution court O.P.(C).No.3739 of 2013 ..7.. after the order for delivery was passed, that his attempt is only to delay the execution of the final decree on grounds which are not tenable. Learned counsel for respondents 1 to 4 contended that more than 23 years have passed after the suit was instituted and to the exclusion of the plaintiff, the defendants have been in possession and enjoyment of the plaint schedule property, for the past two decades and therefore there is no reason why this Court should at this stage interfere with the execution of the final decree for partition. 5. I have considered the submissions made at the Bar, by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The materials on record disclose that the final decree for partition was passed on 12.3.2013. On the very same day a supplementary preliminary decree was also passed. By the supplementary preliminary decree the share of the parties should enhanced from 1/4[th] to 1/3[rd] . These facts are not in dispute. The entitlement of the plaintiff for 1/3[rd] share of the plaint schedule property is also not in dispute. The petitioner has no case anywhere in the pleadings or in the objections filed by him to the report and plan submitted by the Advocate Commissioner as also in I.A.No.3561 of 2013 that the plaint schedule properties was not identifiable or that the devision and allotment made by the Advocate Commissioner is unjust and unfair. The only objection raised by him O.P.(C).No.3739 of 2013 ..8.. in I.A.No.3563 of 2013 was that the lie and extent of the plaint schedule property is not correct and that he has filed objections to set aside the plan and report. Apart from merely stating that the location and extent of the plaint schedule property is not correctly shown, the petitioner did not for reasons best known to him, take steps to substantiate his contention. Ext.P1 report is dated 17.10.2006. I.A.No.3561 of 2007 was filed on 1.12.2007, more than a year thereafter. The final decree was passed only on 12.3.2013. The petitioner cannot therefore contend that no opportunity was extended to him after Ext.P1 report was filed either to file objections or to pursue I.A.No.3561 of 2007. He has not stated with reference to dates that the trial court did not grant him an opportunity to pursue I.A.No.3561 of 2013 or the objections filed by him to the plan and report submitted by the Advocate Commissioner. On the other hand, materials on record disclose that though he had filed an appeal challenging the final decree within the period of limitation, he did not for reasons best known to him move an application in that appeal for stay of the execution of the decree. He did not also file objections to the petition for execution of the decree. As a result thereof, the execution court directed the Amin to effect delivery of the property and posted the execution petition for report to 13.11.2013. At that stage he woke up and filed E.A.No.337 of 2013 on 22.10.2013 under Order XXI rule 26 and 29 O.P.(C).No.3739 of 2013 ..9.. of the Code of Civil procedure read with section 151 of the Code of Civil Procedure seeking stay of execution of the final decree till A.S.No.15 of 2013 is heard and disposed of. Two days thereafter he filed I.A.No.1167 of 2013 in A.S.No.15 of 2013 seeking stay of further proceedings in E.P.108 of 2013 in O.S.No.455 of 1990. It is evident from the sequence of events that it was only after the execution court dismissed E.A.No.337 of 2013 by Ext.P12 order passed on 25.10.2013 that the petitioner filed I.A.No.1167 of 2013 in A.S.No.15 of 2013 seeking stay of the execution of the decree. It is evident from his conduct in not filing an application for staying the appeal and in not filing objections to the execution petition and at the last minute objecting to the order passed by the execution court directing delivery of property in execution of the final decree passed in a suit filed in the year 1990 that his attempt is only to delay the execution of the suit. That apart, on the merits also, I am of the opinion that he is not entitled to succeed. A learned single Judge of this Court has in **John** v. **Leelamma** [2008 (3) KLT 378] held that Order XXI rule 26 of the Code of Civil Procedure has application only to a case where a decree passed by one court is transferred for execution to another court. It was held that if the execution petition is filed before the court which passed the decree and that too after filing an appeal, Order XXI rule 26 of the Code of Civil Procedure cannot be invoked. The said decision in my opinion can applies in all O.P.(C).No.3739 of 2013 **==> picture [26 x 9] intentionally omitted <==** force to the case on hand. As regards Order XXI rule 29 of the Code of Civil Procedure also, I am of the opinion that the court below was perfectly right in dismissing the appeal. Order XXI rule 29 can apply only in a case where a suit instituted by the judgment debtor against the decree holder is pending. Therefore no exception can be taken to the finding entered by the execution court that an order of stay as prayed for by the petitioner cannot be granted. The petitioner ought to have in my opinion moved the appellate court in time for stay of execution of the final decree. I accordingly hold that there is no merit in the instant original petition. The original petition fails and is dismissed. sd/- **P.N.RAVINDRAN, JUDGE.** rkc.