Elodimalayil Pocken v. Koyiloth Moosa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 20TH DAY OF MAY, 2019/30TH VAISAKHA, 1941** **Ex.SA.No. 13 of 2013** **AGAINST THE JUDGMENT AND DECREE DATED 07-02-2013 IN AS NO.18/2012 of SUB COURT, VATAKARA** **AGAINST THE ORDER DATED 16-08-2012 IN E.A.NO.50/2012 IN EP NO.157/2011 IN OS NO.20/2004 of MUNSIFF'S COURT, VATAKARA** ## **APPELLANT/APPELLANT IN A.S./PETITIONER IN E.A.** **ELLODIMALAYIL POCKEN, S/O.ANDI,AGED 63 YEARS, PONMERI AMSOM,PARAMBIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS. SRI.B.KRISHNAN SRI.PARTHASARATHY** ## **RESPONDENTS/RESPONDENTS IN A.S./RESPONDENTS IN E.A.** ***1 KOYILOTH MOOSA, (DIED, LRS IMPLEADED) S/O.MOIDEEN,77 YEARS, AGRICULTURIST, CHALIPARAMBATH HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101.** **2 KOYILOTH POCKER HAJI, S/O.MOIDEEN,74 YEARS, AGRICULTURIST, CHEMMANIMMEL HOUSE, VILLIAPPALLY AMSOM,DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE - 673101.** - **3 KOYILOTH ABDULLA,S/O.MOIDEEN, 73 YEARS,** ExS.A.Nos.13 & 14 of 2013 2 **AGRICULTURIST, THANDARPALLI HOUSE, VALLIAD AMSOM,DESOM, VATAKARA TALU, KOZHIKODE DISTRICT, KERALA STATE - 673 101.** ****4 KOYILOTH MAYANKUTTY, (DIED.LEGAL HEIRS IMPLEADED) S/O MOIDEEN,71 YEARS, AGRICULTURIST, KOYILOTH HOUSE, VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101. 5 KOYILOTH SOOPPY HAJI,S/O MOIDEEN, 70 YEARS,AGRICULTURIST, PUTHUKKUDI PARAMBATH HOUSE, VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101 6 KOYILOTH AMINA HAJJUMMA,D/O MOIDEEN, 68 YEARS,HOUSEWIFE, KEERAMKANDIYIL HOUSE, KOTTAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101. 7 KOYILOTH PATHUMMA HAJJUMMA, D/O MOIDEEN, 67 YEARS,HOUSEWIFE, CHUNDAYIL HOUSE, KOTTAPPALLY AMSOM VALLIAD DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673101 8 KHADEESSA HAJJUMMA, D/O MOIDEEN, 66 YEARS,HOUSEWIFE, THAIKKANDY HOUSE, KOTTAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101 9 THAIKKANDY KUNHAMI, W/O AMMAD HAJI, 51 YEARS, HOUSEWIFE, THANDARAPPALLY HOUSE,** ExS.A.Nos.13 & 14 of 2013 3 **VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101 10 MOIDU,S/O AMMAD HAJI, 31 YEARS, THANDARAPALLY HOUSE, VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101 ADDL.RESPONDENTS: 11 MARIYAM,AGED 77 YEARS, W/O.LATE KOYILOTH MOOSA, CHALIPARAMBATH HOUSE, KOTTAPPALLY AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 12 MOHAMMED ALI,AGED 55 YEARS, S/O.LATE KOYILOTH MOOSA, CHALIPARAMBATH HOUSE, KOTTAPPALLY AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 13 HAMEED,AGED 50 YEARS, S/O.LATE KOYILOTH MOOSA, CHALIPARAMBATH HOUSE, KOTTAPPALLY AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 14 KUNHI AYEESHA,AGED 48 YEARS, D/O.LATE KOYILOTH MOOSA, MADATHIL, BALUSSERY, VATAKARA TALUK, KOZHIKODE DISTRICT. 15 SAMMED,AGED 38 YEARS, S/O.LATE KOYILOTH MOOSA, CHALIPARAMBATH HOUSE, KOTTAPPALLY AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** ***L.RS OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 11 TO 15 ORDER DATED 04.04.2014 IN IA.1017/2014).** ExS.A.Nos.13 & 14 of 2013 4 ## **ADDL.RESPONDENTS:** - **16 AYEESHA, W/O.LATE MAYANKUTTY, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** - **17 RASHEED,S/O.LATE MAYANKUTTY, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA , PIN-673 542.** - **18 ASMA,D/O.LATE MAYANKUTTY, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** - **19 MARIYAM,,D/O.LATE MAYANKUTTY, PILATHOTTATHIL, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** - **20 BUSHERA,D/O.LATE MAYANKUTTY, KALAMKULATH, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA , PIN-673 542.** ****LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 16 TO 20 AS PER ORDER DATED 22.03.2019 IN IA.3371/2015** **R2, R3, R5 TO R10 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN** **ADDL.R11 TO R15 BY ADVS.SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN** **ADDL.R16 TO R20 BY ADV. SRI.P.B.KRISHNAN** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2019, ALONG WITH Ex.SA.NO.14/2013, THE COURT ON 20.05.2019 DELIVERED THE FOLLOWING:** ExS.A.Nos.13 & 14 of 2013 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 20TH DAY OF MAY, 2019/30TH VAISAKHA, 1941** **Ex.SA.No. 14 of 2013** **AGAINST THE JUDGMENT AND DECREE DATED 07-02-2013 IN AS NO. 19/2012 of SUB COURT, VADAKARA** **AGAINST THE ORDER DATED 16-08-2012 IN E.A.NO.84/2012 IN EP NO.187/2011 IN OS NO.20/2004 of MUNSIFF'S COURT, VATAKARA** ## **APPELLANT/APPELLANT IN A.S./PETITIONER IN E.A.** **ELLODIMALAYIL POCKEN, S/O.ANDI, AGED 63 YEARS,PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS. SRI.B.KRISHNAN SRI.PATHASARATHY** ## **RESPONDENTS/RESPONDENTS IN A.S./RESPONDENTS IN E.A.** **1 KOYILOTH POCKER HAJI, S/O.MOIDEEN 74 YEARS,AGRICULTURIST, CHEMMANIMMEL HOUSE, VILLIAPPALLY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE - 673 101, KERALA STATE.** ***2 KOYILOTH MOOSA, S/O.MOIDEEN, (DIED. LRS IMPLEADED) 77 YEARS,AGRICULTURIST, CHALIPARAMBATH HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, VATAKARA TALUK, KOZHIKODE - 673 101, KERALA STATE.** |ExS.A.Nos.13 & 14 of 2013<br>6|ExS.A.Nos.13 & 14 of 2013<br>6| |---|---| |**3**|**KOYILOTH ABDULLA, S/O.MOIDEEN**| ||**73 YEARS,AGRICULTURIST,**| ||**THANDARPALLI HOUSE,**| ||**VALLIAD AMSOM, DESOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE-673 101, KERALA STATE**| |****4**|**KOYILOTH MAYANKUTTY, (DIED.LEGAL HEIRS**| ||**S/O MOIDEEN,71 YEARS, IMPLEADED)**| ||**AGRICULTURIST, KOYILOTH HOUSE,**| ||**VILLIAPPALLY AMSOM DESOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT,**| ||**KERALA STATE- 673101,**| |**5**|**KOYILOTH SOOPPY HAJI,**| ||**S/O MOIDEEN,70 YEARS,**| ||**AGRICULTURIST,**| ||**PUTHUKKUDI PARAMBATH HOUSE,**| ||**VILLIAPPALLY AMSOM DESOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT,**| ||**KERALA STATE-673101.**| |**6**|**KOYILOTH AMINA HAJJUMMA,**| ||**D/O MOIDEEN**| ||**68 YEARS,HOUSEWIFE,**| ||**KEERAMKANDIYIL HOUSE,**| ||**KOTTAPPALLY AMSOM DESOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT,**| ||**KERALA STATE- 673101.**| |**7**|**KOYILOTH PATHUMMA HAJJUMMA,**| ||**D/O MOIDEEN**| ||**67 YEARS,HOUSEWIFE,**| ||**CHUNDAYIL HOUSE,**| ||**KOTTAPPALLY AMSOM VALLIAD DESOM,**| ||**VATAKARA TALUK, KOZHIKODE**| ||**DISTRICT- 673101**| |**8**|**KHADEESA HAJJUMMA,**| ||**D/O MOIDEEN**| ||**66 YEARS,HOUSEWIFE,**| ||**THAIKKANDY HOUSE**| ||**KOTTAPPALLY AMSOM DESOM**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT,**| ||**KERALA STATE- 673 101**| |ExS.A.Nos.13 & 14 of 2013<br>7|ExS.A.Nos.13 & 14 of 2013<br>7| |---|---| |**9**|**THAIKKANDY KUNHAMI,**| ||**W/O.AMMAD HAJI**| ||**51 YEARS,HOUSEWIFE,**| ||**THANDARAPALLY HOUSE,**| ||**VILLIAPPALLY**| ||**AMSOM DESOM**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT,**| ||**KERALA STATE- 673101**| |**10**|**MOIDU, S/O.AMMAD HAJI,**| ||**31 YEARS,THANDARAPALLY HOUSE,**| ||**VILLIAPPALLY AMSOM DESOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT,**| ||**KERALA STATE- 673101**| ||**ADDL.RESPONDENTS**| |**11.**|**MARIYAM,AGED 77 YEARS,**| ||**W/O.LATE KOYILOTH MOOSA,**| ||**CHALIPARAMBATH HOUSE,**| ||**KOTTAPPALLY AMSOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT.**| |**12**|**MOHAMMED ALI, AGED 55 YEARS,**| ||**S/O.LATE KOYILOTH MOOSA,**| ||**CHALIPARAMBATH HOUSE,**| ||**KOTTAPPALLY AMSOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT.**| |**13**|**HAMEED, AGED 50 YEARS,**| ||**S/O.LATE KOYILOTH MOOSA,**| ||**CHALIPARAMBATH HOUSE,**| ||**KOTTAPPALLY AMSOM,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT.**| |**14**|**KUNHI AYEESHA, AGED 48 YEARS,**| ||**S/O.LATE KOYILOTH**| ||**MOOSA, MADATHIL, BALUSSERY,**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT.**| |**15**|**SAMMED, AGED 38 YEARS,**| ||**S/O.LATE KOYILOTH MOOSA,**| ||**CHALIPARAMBATH HOUSE,**| ExS.A.Nos.13 & 14 of 2013 8 ## **KOTTAPPALLY AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** ***L.RS OF DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 11 TO 15 AS PER ORDER DATED 04/04/14 IN I.A.1011/14.** ## **ADDL.RESPONDENTS:** **16 AYEESHA, W/O.LATE MAYANKUTTY, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** - **17 RASHEED,S/O.LATE LATE MAYANKUTTY, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA , PIN-673 542.** - **18 ASMA,D/O.LATE MAYANKUTTY, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** - **19 MARIYAM,,D/O.LATE MAYANKUTTY, PILATHOTTATHIL, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** **20 BUSHERA,D/O.LATE MAYANKUTTY, KALAMKULATH, KOYILOTH HOUSE, P.O.VILLIAPPALLY, (VIA) VATAKARA, PIN-673 542.** ****LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 16 TO 20 AS PER ORDER DATED 20.05.2019 IN IA.3365/2015** **R1, R3, R5 TO R10 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SMT.GEETHA P.MENON** ExS.A.Nos.13 & 14 of 2013 9 **SRI.N.AJITH SRI.P.B.SUBRAMANYAN** **R11 TO R15 BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN ADDL.R16 TO R20 BY ADV.SRI.P.B.KRISHNAN** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2019 ALONG WITH EX.SA.NO.13/2013, THE COURT ON 20.05.2019 DELIVERED THE FOLLOWING:** ExS.A.Nos.13 & 14 of 2013 10 ## **“C.R.”** ## **A.HARIPRASAD, J.** **-------------------------------------ExS.A.Nos.13 & 14 of 2013 -------------------------------------Dated this the 20[th] day of May, 2019** ## **COMMON JUDGMENT** Disputes in these cases revolve around the right of a party to resist execution of the final decree passed in a partition suit by raising claims under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (in short, “the Code”) when he was found, after a fulfledged trial, to be an unnecessary party to the suit. He would, therefore, contend that he is not bound by the decree. 2. Learned single Judge admitted Ex.S.A.No.14 of 2013 by raising two substantial questions of law. Since the substantial legal questions put forth in Ex.S.A.No.13 of 2013 are identical, it is also admitted and both the appeals are heard together. 3. After perusing the entire records and on hearing the learned counsel on both sides, the substantial questions of law reframed are as follows: I. When the appellant was found to be an unnecessary party to a suit for partition and he had set up a title different from the one mentioned in the pleadings of the contesting parties, are the courts below right in holding that the appellant is bound by the decree and ExS.A.Nos.13 & 14 of 2013 11 that he cannot maintain an application under Order XXI Rule 97 of the Code? II. Are the courts below justified in declining the request made by the appellant to have the properties identified, especially when he had taken steps to issue a commission for local inspection? 4. Heard the learned counsel for the appellant and the contesting respondents. 5. Admitted facts are thus:Appellant is the additional 9[th] defendant in O.S.No.20 of 2004 before the Court of Munsiff, Vadakara. The suit is one for partition of the plaint schedule property by metes and bounds. In Ex.S.A.No.13 of 2013, the plaintiff, Moosa, was arrayed as the 1[st] respondent and in Ex.S.A.No.14 of 2013, he was the 2[nd] respondent. Pending the appeal, he died and his legal heirs are impleaded. According to the plaint averments, Moosa and the defendants 1 to 8 are co-owners in respect of the plaint properties. He sought partition and separate possession of the properties. All the original defendants admitted partiability of the estate and they also claimed share in the property by remitting the required court fee. As per the contentions raised by the original defendants, the 9[th] defendant is occupying a kudiyiruppu in the plaint schedule property and therefore he should be made a party to the proceedings. In accordance with that contention, the appellant/9[th] defendant had been impleaded. Thereafter, he filed a written statement contending that ExS.A.Nos.13 & 14 of 2013 12 there was no valid reason for impleading him in the suit. It is stated that he could not comprehend any reason for his impleadment. Further, he contended that the plaint schedule property never belonged to the parties to the suit in co-ownership and it is lying in the possession of Labour Contract Society, Ooralunkal. Why the appellant has been depicted as a person holding kudiyiruppu is not clear from the averments in the plaint and written statement. The appellant and his siblings are entitled to a property lying in survey No.70/68 (resurvey No.140) of Ponmeri amsom. The plaintiff has no right over the said property. Identity of the plaint schedule property has not been properly revealed and at any rate the plaintiff and other defendants are not entitled to get any portion of the property owned by the 9[th] defendant and his siblings. He prayed for dismissal of the suit. 6. Parties went for a trial. It is seen from the trial judgment that only one document was produced on the side of the plaintiff to prove his co-ownership right in the property. None of the parties adduced any oral evidence. The suit was decreed by the trial court by passing a preliminary decree, finding that the appellant is an unnecessary party to the proceedings as he has not set up any right in respect of the plaint schedule property. Legally speaking, the appellant's prayer in the written statement to dismiss the suit in its entirety was not allowed; but then, no effective decree was passed against him. The trial court granted costs to him. Subsequently, an ExS.A.Nos.13 & 14 of 2013 13 application was filed by the plaintiff for passing a final decree in terms of the preliminary decree. It is seen that the appellant challenged the decree in the original suit as well as the order passed in the final decree proceedings by way of two separate appeals. Both the appeals were dismissed re-affirming that the appellant is not a necessary party to the partition suit, virtually declaring that he had no co-ownership right over the property involved in the suit. Why the appellant preferred an appeal from the trial court's judgment and decree finding that he is an unnecessary party to the suit is not very clear, especially when there is no direction to partition the property claimed by him in the written statement. What is the impact of the confirmed finding, that the appellant is an unnecessary party to the suit, on his application under Order XXI Rule 97 of the Code? That is the ultimate question to be decided. 7. It is seen from the records that two sets of execution petitions are filed to take delivery of the property pursuant to the final decree passed in the suit. Both are resisted by the appellant by filing two applications under Order XXI Rule 97 of the Code. The courts below concurrently dismissed his applications finding that he has no legal right to approach the execution court with such applications since he is a party to the suit. 8. Main argument advanced by the learned counsel for the appellant to circumvent this difficulty is that when there is a finding that ExS.A.Nos.13 & 14 of 2013 14 a person is an unnecessary party to a suit, there shall be no fetter on his right to approach the execution court with an application under Order XXI Rule 97 of the Code, especially when he apprehends that his property, not included in the suit, is going to be taken delivery of. This contention is strongly opposed by the contesting respondents saying that such a person shall not be heard at the execution stage because it will amount to conferment of a right not recognized by law. 9. For appreciating the rival contentions, I deem it fit to consider the legal principles in Section 47 and Order XXI Rule 97 of the Code in some detail. 10. Section 47 of the Code is the substantive provision speaking about the questions to be determined by a court executing a decree. It reads thus: ## _“_ _**Questions to be determined by the Court**_ _**executing decree** .- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit._ _(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be_ ExS.A.Nos.13 & 14 of 2013 15 ## _determined by the Court._ _Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit._ _Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and_ _(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.”_ 11. The most important change made to this provision by the Amendment Act, 1976 (Act 104 of 1976) is omission of the earlier SubSection (2). It was like this : _“The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court fees”._ Omission of this Sub-section was made consequent to the change in ExS.A.Nos.13 & 14 of 2013 16 the definition of “decree' in Section 2(2) of the Code. Before the Amendment Act, 1976, definition of decree took in the determination of any question within Section 47 along with the rejection of plaint and determination of any question within Section 144 of the Code. By virtue of the amendment, the expression “Section 47” has been omitted from the definition. It is now clear that a determination of any question within Section 47 of the Code would no longer be regarded as a decree. It would be incongruous, after that amendment, to permit the court to convert an application under Section 47 into a suit. Presumably, to tackle a general impression prevailing amongst the litigant public that the difficulties of a litigant will not be over on his getting a decree for immovable property and to allay the apprehension in the minds of the litigant public that it may take years and years for the decree holder to enjoy the fruits of the decree, the legislature made drastic amendments to the provision, particularly Rules 97, 99 and 101 of Order XXI of the Code. This principle has been lucidly explained in **N.S.S.Narayana Sarma v. M/s.Goldstone Exports (P) Ltd.(AIR 2002 SC 251)** . 12. Section 47 of the Code presupposes the existence of a decree which is capable of execution. It is axiomatic that the Section does not apply to cases where the decree sought to be executed is either a nullity or declaratory in character. 13. The Section provides that all questions arising between ExS.A.Nos.13 & 14 of 2013 17 the parties to a suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. The Section prohibits any relief being granted in a separate suit which will interfere with the conduct of the proceeding by the court executing the decree. No suit, therefore, will lie touching on the execution, discharge or satisfaction of the decree which is sought to be executed. From the wording in the Section, it will be clear that all questions arising between the parties to the suit in which the decree was passed or their representatives, which relate to the execution, discharge or satisfaction of the decree, shall be determined by the executing court itself and not by a separate suit. Emphasis should be given to the words “parties to the suit or their representatives”. 14. It is forcefully contended by the learned counsel that the appellant cannot be regarded as a party to the suit since the trial court, as well as the first appellate court, had found him to be an unnecessary party to the partition suit. According to him, this finding, which has attained finality, takes the appellant out of the purview of the expression “party to the suit in which the decree was passed”. Per contra, the learned counsel for the contesting respondent would argue that merely on the finding that the appellant was wrongly impleaded in the suit, he cannot be regarded as a non-party to the proceedings, ExS.A.Nos.13 & 14 of 2013 18 especially when he raised factual and legal questions in the suit. It is also pointed out that he set up a plea akin to _jus tertii_ (third party rights), which was repelled by the trial court. 15. Before delving into the intricacies of Order XXI Rule 97 of the Code, it will be apposite to find out whether the appellant could be regarded as a party to the suit in the light of admitted facts. 16. Learned counsel on both sides placed heavy reliance on a Full Bench decision of the Madras High Court in **Abdul Sac v. Sundara Mudaliar and another (AIR 1930 Madras 817)** . That was a case referred to a Full Bench on noticing the conflicting decisions rendered by two Division Benches. Facts quoted in the decision are thus: Suit properties belonged to one Kaliappa Pillai. He left a widow and an adopted son Ramaswami Pillai. In 1889, the latter released the suit properties in favour of his adoptive mother. She sold the properties in 1894. And between that year and 1909 there were different purchasers. In 1909 the appellant became a purchaser of the property and created a usufructury mortgage in 1910 in favour of 6[th] defendant. In 1906 Ramaswami Pillai executed a mortgage of some of the properties, which mortgage right was assigned to the 1[st] respondent. In 1917 the 1[st] respondent filed a suit to enforce the mortgage and bring the properties to sale. Ramaswami Pillai's son and other defendants were impleaded in the suit. 2[nd] defendant claimed a title paramount by purchase and pleaded that he was not a necessary ExS.A.Nos.13 & 14 of 2013 19 party to the suit. 6[th] defendant was impleaded as a usufructury mortgagee. Trial court dismissed the suit as against defendants 2 to 6 and gave a decree against the 1[st] defendant, son of Ramaswami Pillai. An execution petition was then presented by the plaintiff to bring the property to sale. No notice was given to the other defendants. 6[th] defendant who was then in possession of the property was dispossessed. 1[st] respondent (plaintiff) disputed the appellant's title. The executing court held that the plaintiff was not entitled in execution of the decree to evict the 6[th] defendant or defendants 2 to 5. The plaintiff's appeal to the District Judge was decided by holding that the questions of title as between the 1[st] respondent and defendants 2 to 6 should have been investigated and that since defendants 2 to 6 were parties to the suit, 1[st] respondent was barred by Section 47 of the Code; the proceedings could have been treated as a suit, if the learned Munsiff considered it sufficiently complicated. 17. The question raised before the Full Bench was whether the defendants 2 to 6 in the suit are, under the provisions of Section 47 of the Code, defendants against whom a suit has been dismissed and therefore parties to the suit ? 18. It was argued on the basis of the decision in **Krishnappa v. Periaswami ((1917) 40 Madras 964)** that a party who has been exonerated from the suit on the ground of misjoinder and his claim has been adjudicated upon in the suit does not remain a party to the suit ExS.A.Nos.13 & 14 of 2013 20 for the purpose of Section 47 of the Code. Noticing the opposite view taken by another bench of the Madras High Court in **Sethu Konar v. Ramaswami (AIR 1926 Madras 484),** the Full Bench, after considering various precedents on the point, held that it would be a contradiction to say that a person, who was held at the trial of the suit not to be a proper party to the suit remains still a party to the suit, for the purpose of Section 47 of the Code. On taking that view, the principle in **Krishnappa** 's case was held to be correctly decided. 19. On a careful perusal of the above decision, it can be seen that it supports the view of the learned counsel for the appellant that in spite of foolhardiness on the part of the appellant, that is, filing an appeal against the finding of the trial court that he was an unnecessary party to the suit and getting an affirmation of the trial court's finding, it will not _ipso facto_ deprive him of a right to raise a contention that he could resist the execution of the decree and his claims need to be adjudicated under Order XXI Rule 97 of the Code. 20. Another decision cited at the Bar in support of the above principle is one rendered by a learned single Judge of this Court in **Francis v. Joseph Scaria (1992(1) KLJ 65)** . Facts would show that in a suit for specific performance of a contract, the revision petitioner before this Court (3[rd] defendant) had filed a written statement in which he had raised no claim to the property in the suit and alleged that he was unnecessarily joined as a defendant. Ultimately, the suit was ExS.A.Nos.13 & 14 of 2013 21 decreed as against the 1[st] defendant. Revision petitioner filed two applications before the executing court for setting aside delivery of the property taken by the decree holder and for measuring and demarcating the property with the help of a surveyor. Sum and substance of his contention was that his property, which was not the subject matter of the suit, was taken possession of in execution of the decree. The court below dismissed both the applications finding that they were incompetent under Section 47 of the Code and the remedy of the petitioner was to file a separate suit. After considering the relevant decisions, this Court held that a defendant against whom no relief is claimed or granted by a decree is not a party to the suit within the meaning of Sub-section (1) of Section 47 of the Code. 21. It is worthwhile to consider a decision rendered by the Privy Council in **Seth Manakchand v. Chaube Manoharlal and another (AIR (31) 1944 Privy Council 46)** , wherein it has been held, while interpreting Section 47 of the Code, that a party, who is dismissed from a suit on the ground that he has no concern with it, is no longer a party to the suit and is not bound by the decree. This also fortifies the stand taken by the appellant. 22. Learned counsel for the respondents placed reliance on **Mahalinga Pathar v. Santhanagopalakrishnan (AIR 1950 Madras** **80)** wherein a Division Bench has held that a party directed to be removed may nevertheless be deemed to be a party to the suit within ExS.A.Nos.13 & 14 of 2013 22 the meaning of Section 47 of the Code. Nonetheless, this decision by a lesser Bench had not considered the Full Bench decision of the Madras High Court in **Abdul Sac** 's case and the principles laid down by the Privy Council in **Seth Manakchand** 's case. Moreover, the facts in **Mahalinga Pathar** 's case are totally different from the facts established in this case. 23. The decision in **Usha Sinha v. Dina Ram (2008(3) KLT 848 (SC))** reiterates a well settled proposition that a purchaser of a suit property during the pendency of litigation has no right to resist or obstruct the execution of a decree passed by a competent court. The doctrine of _lis pendens_ prohibits a party from dealing with the property which is the subject matter of the suit. The principles in this decision have no bearing to the questions involved in this case. Other decisions cited at the Bar, rendered by learned single Judges of various High Courts, which are contrary to the principles laid down in **Abdul Sac** , **Francis** and **Seth Manakchand** cases cannot be regarded as binding precedents in the light of the authoritative pronouncements on the subject. 24. To sum up, it can be stated that a party to a suit, who is wrongly impleaded and has not raised any claim in respect of the subject matter of the suit, if found, at the end of the trial, to be an unnecessary party, then he cannot be said to be a party to the suit for the purpose of Section 47 of the Code. It will be ideal for the trial court ExS.A.Nos.13 & 14 of 2013 23 in such situations to remove him from the party array by invoking Order I Rule 10(2) of the Code. A person, who has no interest to fight a litigation against another and who proclaims that he has been wrongly impleaded in the case since he has no claim over the subject matter, should be deleted from the array of parties resorting to Order I Rule 10(2) of the Code since it amounts to misjoinder of parties. Such a party should be removed atleast at the time of final disposal of the case, if not removed earlier after hearing both sides. Even if the court fails to take the proper course of doing as above, the ultimate finding in the above lines will have the legal effect of treating him as not a party to the suit for the purpose of Section 47 of the Code. 25. In fact, when the trial court found that the appellant had no connection with the suit property and there was misjoinder of party, it should have invoked its power under Order I Rule 10(2) of the Code and deleted him from the party array. It was an irregular procedure on the part of the trial court to retain him in the party array till the time of disposal of the case. That is, atleast at the time of decreeing the suit, the trial court should have removed him from the party array by invoking Order I Rule 10(2) of the Code, instead of dismissing the suit as against him with costs. The appellant cannot be blamed for the mistake on the part of the trial court. However, he should not have taken up the matter in appeal to the first appellate court since there ExS.A.Nos.13 & 14 of 2013 24 was no operative decree against him. His injudicious act of filing an appeal should not deprive him of a legal right accrued to him, to say that he shall not be regarded as a party to the suit. He can file another suit to save his property from being taken delivery of in execution of the decree is no embargo to his right of resistance to the execution proceedings. 26. Order XXI Rule 97 of the Code provides a course open to a party complaining of resistance to delivery of possession to the decree holder or purchaser. It reads in the following lines: “ **R** _**esistance or obstruction to possession of immovable property.-** (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction._ _(2) Where any application is made under sub-r (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.”_ 27. On a conjoint reading of this provision with Order XXI Rule 101 of the Code makes the position clear that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding in such an application or ExS.A.Nos.13 & 14 of 2013 25 their representatives shall be determined by the court dealing with the application and not by a separate suit. I have already found that the appellant cannot be regarded as a party to the suit, which means that his rights have not been adjudicated in the suit. In otherwords, he did not get a forum to agitate his contentions regarding the property which he claims to be not partiable. As mentioned earlier, his right to see that his property is not taken delivery of in execution of a decree passed in a suit, in which he could not be considered to be a party, is a legally recognizable right. 28. A Division Bench of this Court in **Vasudeva Menon v. K.J.Plantation (2012(3) KLT 730)** held that a final decree for partition is a decree for recovery of possession for the purpose of Order XXI Rule 97 of the Code. It is also a fundamental aspect that “any person” referred to in Order XXI Rule 97 of the Code includes persons other than the judgment debtor or those who claim derivative title from the judgment debtor (see **Unnikrishnan v. Kunhibeevi (2011(1) KLT 508** ). The appellant has therefore an independent right of resistance and his propounded rights have to be determined in accordance with law. 29. Learned counsel for the respondents argued that the question of identity of the property now raised by the appellant could have been raised at the trial stage and he should have taken steps to show that the plaint schedule takes in a portion of the property claimed ExS.A.Nos.13 & 14 of 2013 26 by him. Without making any such attempt at the appropriate time, the appellant shall not be permitted to dispute identity of the plaint schedule property at the execution stage. In support of this argument, the decision in **Ravinder Kaur v. Ashok Kumar (AIR 2004 SC 904)** is relied on. On a perusal of the facts in that case, it will be clear that by providing a site plan of the showroom sought to be evicted, the plaintiff started legal action and at various stages attempts were made for identifying the property. In that context, the plea for identification at the stage of execution was denied by the Supreme Court, by holding that courts of law should be careful enough to see through the diabolic plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This decision can be distinguished on facts. 30. In this case, both the plaintiff and appellant are to be blamed for not attempting to identify the property at the trial stage. Therefore, the appellant cannot be singled out and penalized. I am therefore of the view that appellant's request to get the property identified at the execution stage has to be allowed for obtaining clarity to the execution proceedings and also to avoid wrong delivery or excess delivery. For the aforementioned reasons, the substantial legal questions are decided in the appellant's favour and the appeals are allowed. The impugned judgments and decrees passed by the courts ExS.A.Nos.13 & 14 of 2013 27 below are set aside. The matter is remitted back to the execution court directing it to allow the appellant to take out a commission to identify the plaint schedule property only to the extent of establishing that the property claimed by him is not included in the decree. The entire expenses for identification of the property shall be met by the appellant. If he takes appropriate steps within one month from the date of appearance, the execution court shall permit him to take out a commission for the above purpose. If he fails to do so within the stipulated time, the execution court can proceed with the execution as if the appellant has no material to substantiate his claim. The parties are directed to appear before the execution court on 10.06.2019. **A.HARIPRASAD, JUDGE.** ## **cks**