IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935
OP(C).No. 2924 of 2013 (O)
---------------------------
(AGAINST THE ORDER/JUDGMENT IN OS 50/1970 of SUB COURT, THIRUVALLA DATED)
PETITIONER:
-----------------
ANNIE MATHEWS W/O.MATHEW GEORGE, THIRUVILAKALAYIL, PERUMTHURUTHI P.O KAVUMBHAGAM VILLAGE, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.K.SASIKUMAR SRI.R.ROHITH
RESPONDENTS:
---------------------
1. PRASAD KUMAR, THURUTHIYIL VEEDU, THURUTHIKARA MURI KALLOOPPARAVILLAGE, MALLAPPALLY TALUK PATHANAMTHITTA DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER VIJAYACHANDRA KURUP, SREE LAKSHMI HOUSE THURUTHIKKARA MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, 689 584.
2. RAMESH BABU, THURUTHIYIL VEEDU, THURUTHIKKARA MURI KALLOOPPARA VILLAGE, MALLAPPALLY TALUK PATHANAMTHITTA DISTRICT, 689 584.
3. VIJAYAKUMAR, THURUTHIYIL VEEDU, THURUTHIKKARA MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER VIJAYACHANDRA KURUP, SREE LAKSHMI HOUSE THURUTHIKKARA MURI, KALLOOPPARA VILLAGE MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, 689 584.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2924 of 2013 (O)
---------------------------
## APPENDIX
## PETITIONER(S)' EXHIBITS
-------------------------------------
- EXT.P-1: A TRUE COPY OF THE FINAL DECREE DATED 31.5.1995 IN I.A.NO.346 OF 1991 IN O.S.NO.50/1970
- EXT.P-2: A TRUE COPY OF THE E.P NO.41/2008 IN O.S.NO.50/1970
- EXT.P-3: A TRUE COPY OF THE SALE DEED NO.2619 DATED 19.9.1984.
- EXT.P-4: A TRUE COPY OF THE REVENUE TAX RECEIPT DATED 14.9.1993
- EXT.P-5: A TRUE COPY OF THE REVENUE TAX RECEIPT DATED 5.11.2012
- EXT.P-6: A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 5.11.2012 ISSUED BY THE VILLAGE OFFICER, KUTTAPUZHA.
- EXT.P-7: A TRUE COPY OF THE OBJECTION DATED 15.3.2011 SUBMITTED BY THE PETITIONER IN E.P NO.41/2008 IN O.S.NO.50/1970 OF SUB COURT, THIRUVALLA.
- EXT.P-8: A TRUE COPY OF THE PLAINT IN O.S.NO.11/2010 OF THE SUB COURT, THIRUVALLA.
- EXT.P-9: A TRUE COPY OF THE APPLICATION ALONG WITH THE AFFIDAVIT.
- EXT.P-10: A TRUE COPY OF THE JUDGEMENT DATED 4.8.2011 IN O.P(C) 2540/2011 OF THE HON'BLE HIGH COURT OF KERALA.
- EXT.P-11: A TRUE COPY OF THE ORDER DATED 9.4.2013 IN E.A NO.79/2011 IN E.P NO.41/2008 IN O.S. 50/1970 OF SUB COURT, THIRUVALLA.
RESPONDENT(S)' EXHIBITS
---------------------------------------
NIL
/TRUE COPY/
PA TO JUDGE
## **P.N.RAVINDRAN, J.**
## **-------------------------O.P.(C).No.2924 of 2013 -------------------------------Dated this the 27[th] day of August, 2013**
## **JUDGMENT**
The additional 13[th] defendant in O.S.No.50 of 1970 on the file of the Court of the Subordinate Judge of Thiruvalla has filed this original petition challenging the order passed by the court below on 9.4.2013 in E.A.No.79 of 2011 in E.P.No.41 of 2008 in O.S.No.50 of 1970, a copy of which is produced and marked as Ext.P11. By that order the execution court dismissed E.A.No.79 of 2011, an application filed by the petitioner herein under section 151 of the Code of Civil Procedure to consider the maintainability of the execution petition.
2. The records disclose that the preliminary decree for partition was passed in O.S.No.50 of 1970 on 19.9.1972. The final decree was passed on 31.5.1995. The petitioner, who was impleaded as the additional 13[th] defendant in the suit, has filed O.S.No.11 of 2010 in the Court of the Subordinate Judge of Thiruvalla to set aside the decree passed in O.S.No.50 of 1970 in so far as it relates to the property described in the schedule to the plaint in O.S.No.11 of 2010. She has also prayed for declaration of her title and possession over the said parcel of land and for a prohibitory injunction restraining the defendants from proceeding against the plaint schedule property on
O.P.(C) No.2924/2013
2
the strength of the decree in O.S.No.50 of 1970 and for a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property and committing acts of waste therein. Ext.P8, the plaint in O.S.No.11 of 2010 discloses that the main contention raised therein by the plaintiff, who was impleaded as the additional 13[th] defendant in O.S.No.50 of 1970, is that the decree in O.S.No.50 of 1970 was fraudulently obtained by the defendants in O.S.No.11 of 2010. The plaint in O.S.No.11 of 2010 also discloses that the petitioner claims ownership and possession over the property described in the schedule to the plaint by virtue of sale deed No.2619 of 1984 of S.R.O., Thiruvalla.
3. The main objection raised by the petitioner to the maintainability of E.P.No.41 of 2008 in O.S.No.50 of 1970 is on the ground that it is barred by limitation. It is contended that as the final decree was passed on 31.5.1995, the execution petition should have been filed within 12 years from that date namely, on or before 30.5.2007 and therefore, E.P.No.41 of 2008 is liable to be dismissed as barred by limitation. The decree holders in O.S.No.50 of 1970 opposed the said application contending inter alia that by virtue of the interim order passed on I.A.No.496 of 1998 in A.S.No.68 of 1998 on the file of the Court of the Additional District and Sessions Judge (Ad
3
O.P.(C) No.2924/2013
hoc) Fast Track-II, Pathanamthitta, the respondents therein were restrained by an interim order of injunction from obtaining delivery of the plaint schedule property in O.S.No.50 of 1970, that the said interim order was in force till 12.8.2005 when A.S.No.68 of 1998 was disposed of declaring the title and possession of the plaintiff in O.S.No.32 of 1996 on the file of the Court of the Subordinate Judge of Thiruvalla in respect of 55 cents of dry land described in Item Nos.1 and 2 of the schedule to the plaint. The decree holders contended that the period during which the order of injunction was in force is liable to be excluded under section 15 of the Limitation Act, 1963. The execution court considered the rival contentions by Ext.P11 order passed on 9.4.2013 held that the execution petition is not barred by limitation in view of the stipulations contained in section 15 of the Limitation Act, 1963. The said order is under challenge in this original petition.
4. I heard Sri.K.Sasikumar, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The respondents/decree holders had in the execution court produced as Ext.A1, a certified copy of the order of injunction passed by the Additional District and Sessions Judge (Ad hoc) Fast-Track-II, Pathanamthitta on I.A.No.496 of 1998 in A.S.No.68 of 1998, whereby
O.P.(C) No.2924/2013
4
the respondents in the application (the decree holders in O.S.No.50 of 1970) were restrained from taking delivery of the plaint schedule property. That order of injunction was in force till A.S.No.68 of 1998 was disposed of by judgment delivered on 12.8.2005. Section 15 of the Limitation Act, 1963 stipulates that in computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. The Apex Court has interpreting the aforesaid provision held in **Anandilal and Another v. Ram Narain and Others** (AIR 1984 SC 1383) that the word “execution” in section 15(1) embraces all the appropriate means by which a decree is enforced, that it includes all processes and proceedings in aid of, or supplemental to execution and that there is no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in section 16(1) of the Limitation Act. It was also held that stay of any process of execution is stay of execution within the meaning of section 15 of the Limitation Act and therefore, where an injunction or order has prevented the decree holder from executing the decree, then irrespective of the particular
5
O.P.(C) No.2924/2013
stage of execution, or the particular property against which, or the particular judgment-debtor against whom the execution is stayed, the effect of such injunction or order is to prolong the life of the decree itself by the period during which the injunction or order remained in force.
5. In the instant case, it is not in dispute that an order of injunction restraining the decree holders in O.S.No.50 of 1970 from taking delivery of the property in execution of the final decree was in in force from 1998 till 2005. Being a final decree for partition, the decree holders could have obtained delivery of the property only after A.S.No.68 of 1998 is disposed of. The question whether the properties involved in A.S.No.68 of 1998 are available for partition and allotment could have been decided only after the said appeal was disposed of. Therefore, until such time as A.S.No.68 of 1998 was disposed of, the decree holders in O.S.No.50 of 1970 could not have filed an execution petition for partition of the plaint schedule property by metes and bounds and allotment of separate shares to them. Though the order of injunction was not in relation to the entire plaint schedule property in O.S.No.50 of 1970, the suit being one for partition, the plaintiffs/decree holders or the sharers to whom shares had been allotted under the final decree could not have filed an execution
O.P.(C) No.2924/2013
6
petition to execute the final decree effectively. I am therefore in agreement with the execution court that the instant execution petition is not barred by limitation.
I accordingly hold that there is no merit in the original petition. It fails and is dismissed.
**P.N.RAVINDRAN, (JUDGE)**
vps
O.P.(C) No.2924/2013 7
O.P.(C) No.2924/2013 8
