Chakkalaparambil Babu v. Chembakuzhiyil Mohanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932** ## **WP(C).NO. 9449 OF 2010(O)** **-------------------------------------AGAINST THE ORDER IN EP 188/2008 IN OS.263/1999 OF MUNSIFF COURT, THALIPARAMBA** **....................** ## **PETITIONER(S):** **----------------------** **CHAKKALAPARAMBIL BABU,AGED 38 YEARS, S/O.PADMANABHAN, VELLAD AMSOM, NADUVIL DESOM, TALIPARAMBA TALUK.** **BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI** **RESPONDENT(S):** **-------------------------** **CHEMBAKUZHIYIL MOHANAN,AGED 49 YEARS, S/O.VIJAYAN, CHEEKAD, MANAKADAVU PO,ALAKODE VIA, VELLAD AMSOM, TALIPARAMBA TALUK.** **ADV. SRI.U.BALAGANGADHARAN FOR R1 SRI.G.GIREESH FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** ## **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 TRUE COPY OF THE DECREE IN O.S. NO.263 OF 1999 OF THE MUNSIFF'S COURT, TALIPARAMBA DATED 15.2.2000.** **EXHIBIT P2 TRUE COPY OF THE ORDER ON E.P. NO.188 OF 2008 OF THE MUNSIFF'S COURT, TALIPARAMBA DATED 3.2.2010.** **EXHIBIT P3 TRUE COPY OF E.P. NO.188 OF 2008 ON THE FILE OF THE MUNSIFF'S COURT, TALIPARAMBA.** **EXHIBIT P4 TRUE COPY OF COUNTER STATEMENT FILED BY THE PETITIONER IN E.P. NO.188 OF 2008.** **EXHIBIT P5 TRUE COPY OF ELECTION IDENTITY CARD.** **EXHIBIT P6 TRUE COPY OF JENM DEED NO.3266 OF 1996.** ## **RESPONDENT'S EXHIBITS: -----------------------------------** ## **EXHIBIT R1(A) TRUE PHOTOCOPY OF THE ELECTORAL ROLL OF IRIKKUR ASSEMBLY VOTERS LIST.** **EXHIBIT R1(B) TRUE PHOTOCOPY OF THE AGREEMENT EXECUTED BY THE PETITIONER IN FAVOUR OF THIS RESPONDENT.** **EXHIBIT R1(C) TRUE PHOTOCOPY OF THE ORDER OF THE MUNSIFF'S COURT, TALIPARAMBA IN E.P. NO.104 OF 2006 IN O.S. NO.263 OF 1999.** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.9449 of 2010 ==================================== Dated this the 31[st] day of August, 2010** ## **J U D G M E N T** It is not disputed before me, and petitioner in his evidence as R.W.1 has admitted that himself and respondent-decree holder are closely acquainted with each other and are residing just 200 metres away. While so respondent filed O.S.No.263 of 1999 against Kunhimon @ Mangalath Babu, S/o. Narayana Panicker and obtained an ex parte decree for recovery of money. That decree was put into execution by filing E.P. No.104 of 2006. In the Execution Petition name of judgment debtor was stated as in the decree which I have referred to above. Petitioner on his appearance in the executing court challenged identity of the judgment debtor and claimed that there is no decree against him. Executing court passed an order which was challenged in this court in W.P(C) No.16401 of 2008 which this court disposed of permitting respondent-decree holder to file fresh execution petition on establishing identity of the judgment debtor. Thereafter respondent filed E.P.No.188 of 2008 stating that judgment debtor is Chakkalaparambil Babu @ Kunhimon @ **W.P(C) No.9449 of 2010** ## -: 2 :- Mangalath Babu, S/o. Narayana Panicker @ Padmanabhan. Notice of that execution petition was served on petitioner, it is not disputed. But he again raised a contention that there is no decree against him and that he is not the person mentioned in the decree. The executing court conducted an enquiry into the matter and came to the conclusion that the decree has been obtained against the petitioner though there happened to be some mis-description of his name in the decree. Holding so it was directed that execution will proceed against petitioner. That order is under challenge in this Writ Petition. Learned counsel for petitioner asserted that the decree is obtained not against the petitioner, it is obtained against a different person and hence that decree cannot be executed against him. According to the learned counsel at any rate as the decree and the execution petition show different persons as defendant and judgment debtor in the absence of proper amendment of the decree executing court could not have proceeded against petitioner. Reliance is placed on the decision in **Ramu v. State of Kerala** (2005 [4] KLT SN 55 at page 42) where it is held that executing court has no jurisdiction to modify or add or vary the terms of a decree in execution. Learned counsel for respondent would contend that ## **W.P(C) No.9449 of 2010** ## -: 3 :- what is contained in the decree is only a mis-description of the defendant which has been clarified in the execution petition and through the evidence which was accepted by the executing court and hence there is no reason to interfere in the matter. Learned counsel has taken me through the evidence let in by the parties in that regard as also the documents produced by the respondent along with his counter affidavit in this Writ Petition. 2. I shall refer to the dispute involved in the case as seen from the decree and the execution petition. In Ext.P1, decree defendant is described as Kunhimon @ Mangalath Babu S/o.Narayana Panicker. But in E.P.No.188 of 2008 the judgment debtor is Chakkalaparambil Babu @ Kunhimon @ Mangalath Babu, S/o.Narayana Panicker @ Padmanabhan. Question is whether the defendant referred to in Ext.P1, decree is the petitioner. In E.P. No.188 of 2008 petitioner is described as Mangalath Babu, S/o.Narayana Panicker @ Padmanabhan. Exhibit P5 is the Electoral Identity card (Ext.B1 in the executing court) produced and relied on by petitioner where he is described as Babu, S/o.Padmanabhan, Chakkalaparambil, House No.16A. Exhibit P6 (Ext.B2 in the executing court) is a copy of assignment deed dated 25.06.1996 (prior to the suit) executed by one Madhavi in **W.P(C) No.9449 of 2010** ## -: 4 :- favour of Chakkalaparambil Babu, S/o.Padmanabha Panicker (petitioner). Petitioner has given evidence as R.W.1 and denied that he is Mangalath Babu, S/o.Narayana Panicker. He asserted that his house name is Chakkalaparambil and he is son of Padmanabhan. 3. As against the above evidence respondent gave evidence as P.W.1 and testified to his case. Exhibit A2 is the copy of petition register summoned form the local police station to prove a complaint allegedly preferred by one Karunakaran against petitioner. In Ext.A2 petitioner is allegedly described as 'Mangalath Babu', son of Padmanabhan. Exhibit A3 is the voters list for the relevant period concerning serial Nos. 844, 400 and 365. Serial No.844 is Chakkalaparambil Babu, S/o. Padmanabhan (admittedly the petitioner) and serial No.400 is Karthiyayani Amma, Mangalath House. Serial No.365 is Ramachandran, Mangalath House. Along with the counter affidavit respondent has produced Exts.R1(a) to R1(c). Exhibit R1(a) is same as Ext.A3 (voters list). Exhibit R1(b) is an agreement allegedly executed by the petitioner in favour of respondent wherein petitioner has described himself as 'Mangalath Babu' and singed as such. Exhibit R1(c) is the warrant issued from the executing **W.P(C) No.9449 of 2010** -: 5 :- court addressed to addressed to Kunhimon @ Mangalath Babu, S/o. Narayana Panicker. 4. So far as the contention that without amending the decree mentioning the defendant in the same way judgment is described in the execution petition is concerned I must bear in mind the stand of respondent. According to the respondent the decree is obtained and the execution petition is preferred against petitioner though there happened to be some mis-description of the name. It is not a case of mistaken identity so far as respondent is concerned but a case of mis-description of the defendant-judgment debtor. In that view of the matter I am not persuaded to think that in the absence of amendment of decree, respondent could not have proceeded with execution provided of course he is able to establish that decree has ben obtained against the petitioner before me. 5. No doubt in the decree defendant is described as Kunhimon @ Mangalath Babu, S/o. Narayana Panicker. I shall first consider whether petitioner has a house name as 'Mangalath'. Exhibit R1(b), agreement of course is not seen put to the petitioner when examined as R.W.1. and the question whether petitioner had executed that agreement is not brought ## **W.P(C) No.9449 of 2010** ## -: 6 :- out. Therefore I do not consider it proper to consider Ext.R1(b) at this stage. Exhibit R1(c) is the warrant of arrest issued to Kunhimon @ Mangalath Babu, S/o. Narayana Panicker. That admittedly has been served on petitioner and that is admitted by him also as R.W.1. True, learned counsel for petitioner has a contention that though he accepted the warrant he has raised an objection in the executing court that he is not the person referred to in the warrant. But fact remained that the warrant of arrest has been accepted by the petitioner in the name of Kunhimon @ Mangalath Babu, S/o. Narayana Panicker. I must bear in mind that petitioner is a political activist and even according to him respondent has falsely implicated him. A further fact to be bear in mind is that parties are closely acquainted residing 200 kms away. If that be so, there is no reason to think that respondent who wanted to falsely implicate proceed against the petitioner has stated in the plaint a description which is not sufficient to identify petitioner as the defendant. 6. True that in Ext.A3 (ExtR1(a) petitioner is described under serial No.844 as Chakkalaparambil Babu, S/o.Padmanabhan. But under serial Nos.400 and 365 ## **W.P(C) No.9449 of 2010** ## -: 7 :- respectively, his mother and brother are described as residing in Mangalath House. Petitioner is son of Karthiyayani Amma, Mangalath House and brother of Ramachandran, Mangalath House. That means petitioner's mother has the house name as 'Mangalath'. This is admitted by petitioner also when examined as R.W.1. So, there is merit in the contention of respondent that petitioner is Babu, Mangalath house. Another fact is that in Ext.A2 petitioner is described as Mangalath Babu by none other than his brother, Karunakaran. I do not forget that petitioner when examined as R.W.1 denied that and pleaded ignorance about the complaint. Prima facie it would appear that in the complaint filed by brother of petitioner against him he is described as 'Mangalath Babu'. Thus there is sufficient material on record to show that petitioner is 'Mangalath Babu' though he is also known by the house name 'Chakkalaparambil Babu'. 7. So far as the name of father of petitioner is concerned it is true that in Ext.A3, serial No.844 his father's name is stated as Padmanabhan. But in decree name of father of petitioner is stated as 'Narayana Panicker'. But there is no document before me to show that petitioner’s father has an alias name as Narayana Panicker. There is evidence of respondent as P.W.1 ## **W.P(C) No.9449 of 2010** -: 8 :- that petitioner's father had an alias name as Narayana Panicker as well. That evidence has been accepted by the executing court. 8. I stated that even as per the case of petitioner, respondent on account of political animosity has filed a false case against him. Parties are closely acquainted and residing at a distance of 200 metres. In such a situation it is difficult to think that respondent who is a political activist has described petitioner in a different name and would invite trouble in execution. Having regarding to the facts and circumstances and in the light of the evidence on record executing court was justified in holding that petitioner is the person referred to in the decree. That finding being one of fact which rest on proper appreciation of evidence no interference is called for. Resultantly, Writ Petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv