Alphons Thomas v. Aley and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931** **CRP.No. 142 of 2009( )** **---------------------------OS.193/1986 of MUNSIFF COURT, PALA** **...........................** ## **REVN. PETITIONER(S)/7TH JUDGMENT DEBTOR:** **---------------------------------------------------------------------** **ALPHONS THOMAS, KOOTTUNKAL, ULLANADU KARA, BHARANANGANAM VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT.** **BY ADV. SRI.TOM JOSE (PADINJAREKARA)** **RESPONDENT(S)/PLAINTIFFS/TRANSFEREE DECREE HOLDER/ ADDITIONAL JUDGMENT DEBTORS:** **-----------------------------------------------------------------------------------** **1. ALEY, W/O.THOMMAN, KOOTTUNKAL HOUSE, ULLANADU KARA, BHARANANGANAM VILLAGE, NOW RESIDING AT THELLAKAM KARA, NEAR KARITHAS, ETTUMANOOR VILLAGE.** **2. K.O.OUSEPH, S/O.THOMMAN, KOOTTUNKAL HOUSE ,THRUVANKULAM KARA, NEAR KARITHAS, ETTUMANOOR VILLAGE.** **3. K.T.THOMAS, S/O.THOMMAN, KOOTTUNKAL HOUSE, MELAMBARA KARA, THALAPPALAM VILLAGE.** **4. CHALSE, S/O.THOMMAN, KOOTTUNKAL HOUSE, THELLAKAM KARA, ETTUMANOOR VILLAGE.** **5. SEBASTIAN, S/O THOMMAN, KOOTTUNKAL HOUSE ULLANADU KARA, BHARANANGANAM VILLAGE.** **6. D.SOPHY THOMAS, ST.CLAYERS CONVENT, LALYWHILE KRISHNA, VIJAAVADA.** **7. LUCY SOMAN, KODAEKANAL, KUNNONNI, POONJAR THEKKEKARA VILLAGE.** ## **CRP.No. 142 of 2009( )** **8. MARYAMMA, THENGANAM KUNNEL,** **AMBARANIRAPPEL KARA, BHARANANGANAM VILLAGE.** **9. SOYA BABU, PUTHIYAPARAMBIL HOUSE,** **MELOM KARA, DARKHANDU VILLAGE, DARKHANDU PO.** **10. TOMY THOMAS, KOOTTUNKAL HOUSE,** **BHARANANGANAM KARA, BHARANANGANAM P.O.** **BY ADVS. SRI.P.R.VENKETESH FOR R2-R4 SRI.ABRAHAM GEORGE JACOB.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami** ## **S.S.SATHEESACHANDRAN, J. ------------------------------C.R.P.NO.142 OF 2009 (C) ----------------------------------Dated this the 16[th] day of July, 2009** ## **O R D E R** The revision is directed against the order dated 24.1.2009 in E.P.No.22/2008 in O.S.No.193/1986 on the file of the Munsiff Court, Pala. The 7[th] judgment debtor in the execution petition who was brought in by way of substitution as one among the legal representatives along with other legal representatives of the 1[st] judgment debtor on his death during the pendency of the execution proceedings had moved an application under Order XXI Rule 97 of CPC setting up a case that he has prescribed title over the decree property by adverse possession, and so much so, he has an independent title, right and possession over the property and it has to be adjudicated by the court. The decree sought to be executed was one passed in a suit for recovery of possession, in which, the 1[st] judgment debtor was the sole defendant. Decree passed by the trial court was confirmed in the appeal CRP.142/09 2 preferred by the defendant. Claim raised by the 7[th] judgment debtor setting up an independent title, right and possession over the property covered by the decree was resisted by the decree holder contending that the judgment debtor, under law cannot set up a claim when he has been brought in as a legal representative of the judgment debtor. A claim under Order XXI Rule 97 of CPC is permissible only where a right is claimed independently otherwise than by the judgment debtor, was the case canvassed by the decree holder to impeach the claim of the 7[th] judgment debtor. The learned Munsiff, after considering the claim petition with reference to the objections raised by the decree holder and hearing the counsel on both sides, found the claim canvassed by the 7[th] judgment debtor was not entertainable with no adjudication warranted in the facts and circumstances of the case over such claim; and, forming such conclusion, the petition moved by the 7[th] judgment debtor was dismissed. That order is impugned in the revision. ## 2. I heard the learned counsel on both sides. The CRP.142/09 3 learned counsel for the 7[th] judgment debtor contended that he has a right to file a claim petition when he has an independent title by virtue of the adverse possession over the property, and so much so, the learned Munsiff was not correct in holding that his claim is not entertainable. Another grievance canvassed by the counsel is that there was no adjudication of the claim and he was denied of an opportunity of establishing his independent title, right and possession over the property as contemplated under Order XXI Rule 101 of CPC. According to the learned counsel for the petitioner, he is also entitled to the benefits insulated under the Compensation for Tenant Improvement Act, 1958 and that was also denied by the dismissal of his claim petition. Reliance is placed on **Noorduddin v. Dr.K.L.Anand (1995 (1) SCC 242)** to contend that executing court has necessarily to go into a claim set up and a finding has to be arrived on the claim after affording opportunity to the claimant to substantiate his case. On the other hand, the learned counsel for the decree holder submitted that in the appeal preferred against the decree by the father of the present revision petitioner (7[th] judgment CRP.142/09 4 debtor), he had moved application for his impleadment setting forth a case that his parents had transferred the decree schedule property in his favour and for an effective adjudication of the appeal, his presence as a party was necessary. That application was dismissed by the appellate court. After the death of his father, when he was brought in as one among his legal representatives, the learned counsel submits a case different from that was canvassed before the appellate court is presented by filing a claim petition contending that he has prescribed title over the property by adverse possession. It is further submitted that as the 7[th] judgment debtor had been brought in the execution proceedings as a legal representative of the deceased 1[st] judgment debtor, it was a case of substitution only, and he can represent whatever right, title and or interest, which was available of that judgment debtor and that alone, and not competent to set up any independent right to obstruct the execution of the decree. The learned counsel for the decree holder relied on **Ajith Kumar M.R. and others v. Vasanthi Devi and Others (2008 (4) KHC 818)** to contend that the 5 CRP.142/09 7[th] judgment debtor is bound by the decree passed against his predecessor, his father, the 1[st] judgment debtor, and it is not open to him to set up in the execution proceedings an independent title, right or possession over the decree schedule property. 3. Needless to point out that the 7[th] judgment debtor has been brought in by way of substitution on the death of the 1[st] judgment debtor, his father, along with the other legal representatives of that judgment debtor. To what extent a legal representative of a judgment debtor brought in by way of substitution can set up an independent right resisting the decree is the question arising for consideration. In that context, the definition of 'the legal representative' under Section 2 (11) of CPC emerges for consideration. Section 2 (11) reads thus: “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom CRP.142/09 6 the estate devolves on the death of the party so suing or sued.” He cannot have a larger right than what was available to the judgment debtor against whom a decree had been passed after adjudication. Once a decree was passed against the predecessor and a legal representative is brought in by way of substitution to represent the deceased judgment debtor, it is not open to him to set up an independent title, right or possession to resist the decree. An application filed by him under Order XXI Rule 97 of CPC to resist the decree setting forth an independent right, title and possession over the decree schedule property is not entertainable. Any resistance to the decree by the legal representative of the judgment debtor by setting forth a claim, which was not available to the deceased judgment debtor, whose estate or interest alone is competent to represent, cannot be gone into by the execution court. So much so, there is no merit in the case canvassed by the 7[th] judgment debtor that his claim moved under Order XXI Rule 97 CPC setting forth an independent right over the decree property when he was brought in by substitution as CRP.142/09 7 one among the legal representatives of the 1[st] judgment debtor is ex facie not legally sustainable. The decision canvassed by the counsel for the 7[th] judgment debtor **Noorduddin v. Dr. K.L.Anand (1995 (1) SCC 242)** also makes it emphatically clear that to enable a person to move an application under Order XXI Rule 97 of CPC, he must have right independent of the judgment debtor or a person having no derivative right from the judgment debtor. The decree was passed against the 1[st] judgment debtor, father of the 7[th] judgment debtor, and it was the case of the 7[th] judgment debtor in the application moved before the appellate court that he got right and possession over the property under his parents. What he claimed was derivative from his father. When such be the fact, the execution court is not bound to adjudicate the claim or objection. I need not say anything about the claim canvassed by the 7[th] judgment debtor for the benefits under Compensation for Tenant Improvement Act, 1958. To claim the benefit thereunder it must be shown that he is a tenant under that Act. Even on the case canvassed by the 7[th] judgment debtor he does not come as a tenant covered CRP.142/09 8 by that Act. So in any view of the matter, I find no impropriety or illegality in the order passed by the court below turning down the petition moved under Order XXI Rule 97 of CPC. Revision is devoid of any merit, and it is dismissed. **S.S.SATHEESACHANDRAN JUDGE** prp