Anirudhan and Chachu v. M.J. Mathew and Ponnappan

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ## `OP(C) NO. 2853 OF 2023` ``` EP 271/1995 OF PRINCIPAL MUNSIFF COURT, CHERTHALA ``` ## `PETITIONER(S)/JUDGMENT DEBTORS 2 & 3/DEFENDANTS 2 & 3:` ``` 1ANIRUDHAN AGED 80 YEARS S/O KANNAN, RESIDING AT PANDARAPATTATHIL HOUSE, THURAVOOR SOUTH VILLAGE, VALAMANGALAM SOUTH MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT., PIN - 688532 2CHACHU AGED 72 YEARS W/O ANIRUDHAN, RESIDING AT PANDARAPATTATHIL HOUSE, THURAVOOR SOUTH VILLAGE, VALAMANGALAM SOUTH MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT., PIN - 688532 BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.SUSEELA VIJAYAN PILLAI P.K. M.M.VINOD KEERTHI B. CHANDRAN C.PURUSHOTHAMAN NAIR SINEESH K.M. ``` ## `RESPONDENT( S )/DECREE HOLDER AND JUDGMENT DEBTOR NO.1/PLAINTIFF & 1ST` ## `DEFENDANT:` ``` 1M.J. MATHEW AGED 62 YEARS S/O JOSEPH, MALIYIL HOUSE, THURAVOOR SOUTH VILLAGE, VALAMANGALAM SOUTH MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT., PIN - 688532 2PONNAPPAN AGED 88 YEARS S/O KANNAN, ERICHIL VEEDU, UDAYANAPURAM MURI,UDAYANAPURAM VILLAGE VAIKOM FROM PANDARAPATTATHIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT., PIN - 688532 BY ADVS. ANISON M R V.BHARGAVI (PANANGAD)(K/280/1989) P.A.RINUSA(K/000379/2009) ``` ``` O.P.(C.) No.2853 of 2023 ``` 2 ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C.) No.2853 of 2023 ``` 3 ## **C.JAYACHANDRAN, J. -----------------------------------O.P.(C.) No.2853 of 2023 -----------------------------------Dated this the 10[th] day of January, 2024** ## **JUDGMENT** Under challenge in this Original Petition is Ext.P13 order, which dismissed an application preferred by the judgment debtors in E.P. No.271/1995 arising from O.S. No.807/1992 of the Principal Munsiff Court, Cherthala, under Order 21 Rule 29 of the Code of Civil Procedure. 2. Heard the learned counsel for the petitioners and the respondents. 3. Learned counsel for the petitioners submit that the petitioners are judgment debtors 1 and 2 in the Execution Petition afore referred, who are husband and wife as well. The decree was passed on 16.03.1995, which was one for recovery of possession ``` O.P.(C.) No.2853 of 2023 ``` 4 of plaint schedule item no.3, which forms part of plaint schedule item no.1. Item no.2 is the petitioners’ property having an extent of 10 cents, which they obtained as per Kudikidappu. On 17.05.2008, petitioners’ son purchased 49 cents of land as per Ext.P8 sale deed, which is lying contiguous to the said 10 cents. In the execution of the decree, strip of land having width of 10 feet - wherein the toilet of the petitioners are situated - is also included in the land which is sought to be recovered as per the decree. Ext.P3 is the Commission Report, which was taken out at the execution stage. Ext.P4 objection was filed assailing Ext.P3 report and Ext.P5 application to set aside Ext.P3 report was also preferred. As per Ext.P7 order, Ext.P5 application was allowed and it was observed that the property covered by Ext.P8 sale deed shall not be included in the execution. By virtue of the subsequent order, Ext.P9 was clarified that there ``` O.P.(C.) No.2853 of 2023 ``` 5 was no direction to measure Ext.P8 property. However, the Ameen and Surveyor visited the property and measured the same, in disobedience of Ext.P7 order, by including property covered by Ext.P5 as well. In the meantime, Ext.P10 suit was preferred by the second judgment debtor on 09.10.2023 seeking declaration of title over the said 49 cents of land covered by Ext.P8, followed by a consequential injunction. According to the petitioner, in view of Ext.P10 suit, the execution proceedings is liable to be stayed as per Order 21, Rule 29. Such request of the petitioner was dismissed by the learned Munsiff by virtue of Ext.P13 order. None of the legal aspects, or for that matter factual aspects, are discussed in Ext.P13, is the submission made by the learned counsel. 4. Per contra, the above submissions were seriously opposed by the learned counsel for the respondents/decree holders. It was pointed out that ``` O.P.(C.) No.2853 of 2023 ``` 6 the provisions of Order 21, Rule 29, has no application whatsoever. 5. Having heard the learned counsel appearing on both sides, this Court is not inclined to interfere with Ext.P13 order of the learned Munsiff. This Court notice that the decree in question was passed as early as on 16.0.1995 and Ext.P10 suit was filed only on 09.10.2023. A perusal of Order 21, Rule 29, would leave a serious doubt as to whether a suit preferred subsequent to the decree would be sufficient to invoke the stay of execution proceedings contemplated under Rule 29 of Order 21. This Court, however, is not called upon to answer the same, as the same is not raised in this proceeding and that resolution of the said issue is not inevitable for disposal of this Original Petition. This Court, however, notice that Ext.P10 subsequent suit was preferred by the second judgment debtor, only in her capacity as the legal representative of her son, ``` O.P.(C.) No.2853 of 2023 ``` 7 who was no more at the time of institution of the said suit. Admittedly, Ext.P8 sale deed is in favour of petitioners’ son in respect of 49 cents of land and Ext.P10 suit pertains to the said land. It could thus be seen that the subsequent suit is preferred by a different person, in respect of different property and it cannot be found that the said suit is instituted ‘on the part of the person against whom the decree was passed’. Therefore, reliance placed upon Order 21, Rule 29, to seek stay of execution proceedings appears to be misconceived. A judgment of the learned Single Judge of this Court in Krishnan Namboodiri v. Unnikrishnan Namboodiri [(1998) 2 KLT 380] has been pressed into service by the learned counsel for the petitioner. This Court perused the judgment, especially paragraph no.5 thereof, wherein, the learned Single Judge has referred to the decisions of various High Courts, which held that a petitioner ``` O.P.(C.) No.2853 of 2023 ``` 8 under Order 21, Rule 29, has to make out a sufficient cause, in the sense that he would incur substantial loss and there exists a fairly arguable question to be decided in the subsequent suit. A decision of the Orissa High Court relied on by the learned Single Judge emphasize that the fundamental consideration is to permit the winner of a decree to have the fruits of the decree, except for good reasons. A Madras decision of the year 1936 relied upon indicates that the purpose of Order 21, Rule 29 is to enable the adjustment of the decree or claim by the plaintiff against the decree obtained against him. What is seen emphasized is the discretion of the Court. 6. In the instant facts, this Court cannot find any fault with the learned Munsiff in exercising the discretion to dismiss the petition under Order 21, Rule 29. ``` O.P.(C.) No.2853 of 2023 ``` 9 7. Before parting with the judgment, this Court also notice that the issue is with respect to inclusion of an extent of property of the petitioners’ son, in execution of the subject decree for recovery of possession. If that be so, the maintainability of the subsequent suit itself is in question, since adequate remedy is seen provided under Order 21, Rule 97 of the Code. Moreover, other legal heirs of the petitioners’ son are not made parties in the subsequent suit. For the reasons afore cited, this Original Petition fails and the same is dismissed. ## **Sd/-** ## **C. JAYACHANDRAN** **JUDGE** SKP/10-1 ``` O.P.(C.) No.2853 of 2023 ``` 10 ## `APPENDIX OF OP(C) 2853/2023` |`PETITIONERS’ EXHIBITS:`|| |---|---| |`EXHIBIT P-1`|`TRUE COPY OF E.P. NO. 271/1995 DATED 10.10.1995`| ||`ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT,`| ||`CHERTHALA`| |`EXHIBIT P-2`|`TRUE COPY OF THE JUDGMENT DATED 16.3.1995 IN`| ||`O.S. NO. 807/1992 OF THE PRINCIPAL MUNSIFF'S`| ||`COURT, CHERTHALA`| |`EXHIBIT P-3`|`TRUE COPY OF THE INTERIM REPORT DATED 23.1.2023`| ||`AND THE PLAN SUBMITTED BY THE ADVOCATE`| ||`COMMISSION IN E.P. NO. 271/1995 PENDING BEFORE`| ||`THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA`| |`EXHIBIT P-4`|`TRUE COPY OF THE OBJECTION DATED 25.1.2023 TO`| ||`THE INTERIM REPORT DATED 23.1.2023 AND PLAN`| ||`SUBMITTED BY THE ADVOCATE COMMISSION IN E.P.`| ||`NO. 271/1995 PENDING BEFORE THE PRINCIPAL`| ||`MUNSIFF'S COURT, CHERTHALA`| |`EXHIBIT P-5`|`TRUE COPY OF E.A. NO. 53/2023 DATED 31.1.2023`| ||`IN E.P. NO. 271/1995 IN O.S. NO. 807/1992 OF`| ||`THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA`| |`EXHIBIT P-6`|`TRUE COPY OF THE PETITIONERS' OBJECTION DATED`| ||`1.2.2023 IN E.P. NO. 271/1995 PENDING BEFORE`| ||`THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA`| |`EXHIBIT P-7`|`TRUE COPY OF THE ORDER DATED 6.7.2023 IN E.A.`| ||`NO. 53/2023 IN E.P. NO. 271/1995 IN O.S. NO.`| ||`807/1992 OF THE PRINCIPAL MUNSIFF'S COURT,`| ||`CHERTHALA`| |`EXHIBIT P-8`|`TRUE COPY OF THE SALE DEED NO. 1031/2008 ON THE`| ||`FILE OF S.R.O., PATTANAKKAD`| |`EXHIBIT P-9`|`TRUE COPY OF THE CLARIFICATION ORDER DATED`| ||`30.10.2023 IN IN E.P. NO. 271/1995 IN O.S. NO.`| ||`807/1992 OF THE PRINCIPAL MUNSIFF'S COURT,`| ||`CHERTHALA`| |`EXHIBIT P-10`|`TRUE COPY OF THE PLAINT IN OS.NO.555/2023 DATED`| ||`9.10.2023 PENDING BEFORE THE PRINCIPAL`| ||`MUNSIFF'S COURT CHERTHALA`| |`EXHIBIT P-11`|`TRUE COPY OF E.A. NO.650/2023 DATED 2.12.2023`| ||`IN E.P. NO. 271/1995 IN O S. NO.807/1992 ON THE`| ||`FILE OF THE PRINCIPAL MUNSIFF'S COURT CHERTHALA`| |`EXHIBIT P-12`|`TRUE COPY OF THE OBJECTION DATED 12.12.2023 IN`| ||`E.A. NO.650/2023 IN E.P. NO. 271/1995 PENDING`| ||`BEFORE THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA`| |`EXHIBIT P-13`|`TRUE COPY OF THE ORDER DATED 12.12.2023 IN E.A.`| ||`NO.650/2023 IN E.P. NO. 271/1995 IN O S. NO.`| ``` O.P.(C.) No.2853 of 2023 ``` 11 ``` 807/1992 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA EXHIBIT P-14TRUE COPY OF E.A. NO. 639/2023 DATED 2.12.2023 IN E.P. NO. 271/1995 IN O S. NO. 807/1992 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT CHERTHALA EXHIBIT P-15TRUE COPY OF THE ORDER DATED 13.12.2023 IN E.A. NO. 639/2023 IN E.P. NO. 271/1995 IN O S. NO. 807/1992 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT CHERTHALA EXHIBIT P16TRUE COPY OF SALE DEED NO.653/1992 DATED 4.3.1992 ON THE FILE OF S.R.O., PATTANAKAD RESPONDENTS' EXHIBITS:NIL ``` ## `TRUE COPY` ``` P.A. TO JUDGE ```