- High Court of Kerala (2023)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2023-06-20
Court Decision / Holding: Original Petition is dismissed. The court held that it is permissible to appoint a survey commissioner to identify the property covered by the decree and to determine whether the decree binds the interest of the obstructor, and that the petitioners’ Rule 99 challenge cannot upset the final decree, in view of the precedent Thomas Danniel @ Bose v. Rajan J.
Final Disposition: Original Petition dismissed

Parties to the Case

Appellants / Petitioners

Sairanthri
Valsala
Suresh Kumar
Dileep Kumar
Shiju Mon
Shinni Mon
Ambika
Chandrika
Sheela
Sangeetha
Jiji Raj
Rakhi Raj
Santhini
Thankamani
Sheeja
Sheeba

Respondents

Jayalekshmi
Sreekala
Geetha C.S.
Sarojini

Legal Representation & Advocates

Counsels for Petitioners

• J. Jayakumar

Counsels for Respondents

• G.S.Reghunath
• N.R.Suresh Kumar

Case Synopsis & Summary

This is an obstruction petition (OP(C) No. 2004 of 2021) filed before the High Court of Kerala, challenging proceedings in the final decree stage of OS 927/2012. The petitioners/counter petitioners (numbers 2 to 17, with the list primarily naming 16 individuals) sought impleadment in the final decree proceedings, recall and remittance of the Commissioner’s report, and, ultimately, invoked Rule 99 of Order XXI CPC to challenge the disposition under the decree. The respondents/obstruction petitioners (R1–R3) and counter petitioner R4 were also before the court. The petitioners argued that their rights and interests in the subject property could be affected by the decree and that the proceedings and the Commissioner’s report needed reconsideration. The trial court dismissed these applications on the ground that the petitioners were not parties to the preliminary decree and had no standing to litigate under any party to that decree. After the final decree was drawn, the petitioners moved under Rule 99, contending their rights to property were being violated under the guise of delivery under the decree. The court relied on Thomas Danniel @ Bose v. Rajan J to hold that Rule 99 is not a remedy to upset the final decree; it is permissible to appoint a survey commissioner to identify the property covered by the decree and determine whether the decree binds the interest of the objector. The original petition was dismissed accordingly, preserving the decree’s finality.

Provisions of Law Cited

Rule 97 of Order XXI CPCRule 99 of Order XXI CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners sought impleadment in the final decree stage, along with applications for recalling and remitting back the Commissioner’s report. They relied on Rule 99 of Order XXI CPC, arguing that third parties with acknowledged or potential interests in the subject property should be heard and that the decree cannot be executed without addressing those interests. They contended that the survey of the property is essential to identify the property covered by the decree and to determine whether the decree binds any interest of the obstructor. They asserted their stake in the outcome of the decree even though they were not parties to the preliminary decree.

Contentions of Respondents

The respondents contended that the petitioners were not parties to the preliminary decree and did not litigate under any party to that decree; Rule 99 applies only after dispossession in execution and cannot be used to bypass or modify the final decree; remedy lies with the decree holder under Rule 97 of Order XXI CPC; the petitioners’ Rule 99 application was not maintainable and the trial court rightly dismissed the petitions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Thomas Danniel @ Bose v. Rajan J	ILR 2020 (3) Ker.612	Positive	Cited to support the proposition that Rule 99 can be treated as a counter to Rule 97, and to justify proceeding with a survey to identify the property and determine binding of the decree on an obstructor's interest.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 20[th] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 OP(C) NO. 2004 OF 2021 AGAINST THE ORDER DATED 22.10.2021 IN EA No.438/2021 IN EA 551/2019 IN EP 220/2019 IN OS 927/2012 OF II ADDITIONAL MUNSIFF ## COURT, THIRUVANANTHAPURAM ## PETITIONERS/COUNTER PETITIONERS 2 TO 17: - 1 SAIRANTHRI, AGED 80 YEARS, W/o LATE APPUKUTTAN, KUNNATHU KONATHU MELEVILA VEEDU, CHEMPAKASSERY POST, THIRUVANANTHAPURAM, PIN-695014. - 2 VALSALA, AGED 55 YEARS, D/o LATE APPUKUTTAN, KUNNATHU KONATHU MELEVILA VEEDU, CHEMPAKASSERY POST, THIRUVANANTHAPURAM, PIN-695014. - 3 SURESH KUMAR, AGED 48 YEARS, S/o LATE APPUKUTTAN, KUNNATHU KONATHU MELEVILA VEEDU, CHEMPAKASSERY POST, THIRUVANANTHAPURAM, PIN-695014. - 4 DILEEP KUMAR, AGED 45 YEARS, S/o LATE INDIRA, JANAKI BHAVAN, PULLUKAD, KADUKAYIL, KARIMANAL POST, THIRUVANANTHAPURAM, PIN-695102. - 5 SHIJU MON, AGED 45 YEARS, S/o LATE INDIRA, JANAKI BHAVAN, PULLUKAD, KADUKAYIL, KARIMANAL POST, THIRUVANANTHAPURAM, PIN-695102. - 6 SHINNI MON, AGED 41 YEARS, S/o LATE INDIRA, JANAKI BHAVAN, PULLUKAD, KADUKAYIL, KARIMANAL POST, THIRUVANANTHAPURAM, PIN-695102. - 7 AMBIKA, AGED 60 YEARS, D/o LATE AMBUJAKSHI, JANAKI BHAVAN, PULLUKAD, KADUKAYIL, KARIMANAL POST, THIRUVANANTHAPURAM, PIN-695102. - 8 CHANDRIKA, AGED 58 YEARS, D/o LATE SREEDHARAN, LEKSHMI BHAVAN, KARIYIL, KAZHAKOOTAM, THIRUVANANTHAPURAM, PIN-695102. OP(C) No.2004 of 2021 2 - 9 SHEELA, D/o LATE SREEDHARAN, ABHAYAM, KATTACHAL, CHANNANKARA POST, THIRUVANANTHAPURAM, PIN-695586. - 10 SANGEETHA, AGED 43 YEARS, D/o LATE VIJAYAKUMAR, SUNIL BHAVAN, NEDUMPARAMBU POST, ALAMCODU, THIRUVANANTHAPURAM, PIN-695104. - 11 JIJI RAJ, AGED 27 YEARS, D/o RAJU, GOPALANARAYANEEYAM, TC NO.42/587(1), MUTTATHARA, VALLAKADAVU, THIRUVANANTHAPURAM, PIN-695104. - 12 RAKHI RAJ, AGED 27 YEARS, D/o LATE RAJU, GOPALANARAYANEEYAM, TC NO.42/587(1), MUTTATHARA, VALLAKADAVU, THIRUVANANTHAPURAM, PIN-695104. - 13 SANTHINI, AGED 61 YEARS, D/o LATE RAJAMMA, VARUVILAKATHU VEEDU, KARIYIL, KAZHAKOOTAM, THIRUVANANTHAPURAM, PIN-695104. - 14 THANKAMANI, AGED 54 YEARS, D/o LATE RAJAMMA, PULIYARA VEEDU, KARIYIL, KAZHAKOOTAM, THIRUVANANTHAPURAM, PIN-695104. - 15 SHEEJA, AGED 41 YEARS, D/o LATE RAVEENDRAN, VADAKUVILAKATHU VEEDU, PALLANA NAGAR, HOUSE NO.31, TOWN WARD, KAZHAKOOTTAM POST, THIRUVANANTHAPURAM, PIN-695013. - 16 SHEEBA, AGED 39 YEARS, D/o LATE RAVEENDRAN, VADAKUVILAKATHU VEEDU, PALLANA NAGAR, HOUSE NO.31, TOWN WARD, KAZHAKOOTTAM POST, THIRUVANANTHAPURAM, PIN-695013. BY ADV J.JAYAKUMAR OP(C) No.2004 of 2021 3 ## RESPONDENTS/OBSTRUCTION PETITIONERS & COUNTER PETITIONER No.1: 1 JAYALEKSHMI, AGED 52 YEARS, D/o N.CHANDRASEKHARAN NAIR, NADUVILA VEEDU, ATTIPRA VILLAGE, KULATHOOR POST, THIRUVANANTHAPURAM, PIN-695583. 2 SREEKALA, AGED 51 YEARS, D/o N.CHANDRASEKHARAN NAIR, NADUVILA VEEDU, ATTIPRA VILLAGE, KULATHOOR POST, THIRUVANANTHAPURAM, PIN-695102. 3 GEETHA C.S., AGED 49 YEARS, D/o N.CHANDRASEKHARAN NAIR, NADUVILA VEEDU, ATTIPRA VILLAGE, KULATHOOR POST, THIRUVANANTHAPURAM, PIN-695011. 4 SAROJINI, AGED 90 YEARS, D/o PONNU, PULIYARA VEEDU, KARIYIL, KAZHAKOOTTAM POST, THIRUVANANTHAPURAM, PIN 605014. R1 TO R3 BY ADV. G.S.REGHUNATH R4 BY ADV. N.R.SURESH KUMAR THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) No.2004 of 2021 4 ## **JUDGMENT** During the pendency of final decree application, the present petitioners came up with an application for their impleadment in the final decree stage of the proceedings along with an application for recalling the Commissioner's report and yet another application for remitting back the Commissioner's report. All these applications were rightly dismissed by the trial court on the reason that they are not party to the preliminary decree and not litigating under any of the parties to the preliminary decree. After the culmination of final decree, it was put in execution. Thereon, the very same persons came up with an application under Rule 99 of Order XXI CPC claiming that it is their property sought to be delivered under the guise of the decree. In fact, this can be considered as an application in answer to OP(C) No.2004 of 2021 5 Rule 97 of Order XXI CPC. An application for removing the obstruction under that Rule, Rule 97 of Order XXI CPC, was submitted by the decree holder. Necessarily, the application filed under Rule 99 by a third person should be treated as counter to the abovesaid application, since Rule 99 would come into play only after the dispossession of the party concerned in execution of a decree from an immovable property. It is upto the decree holder or the purchaser or anyone litigating under the decree holder who can exhaust the remedy under Rule 97 of Order XXI CPC and it is well settled by this court in **Thomas Danniel @ Bose v. Rajan J [ILR 2020 (3) Ker.612].** Necessarily, the application submitted under Rule 99 of Order XXI CPC can be termed as a counter to the application under Rule 97 of Order XXI CPC preferred by the decree holder. It is permissible to let out a survey commission in order to identify the property covered by the decree and to find out whether the decree would bind on the interest, if OP(C) No.2004 of 2021 6 any, held by the obstructor, hence deserves no interference. The Original Petition will stand dismissed accordingly. **Sd/-** **P.SOMARAJAN** **JUDGE** DMR/- OP(C) No.2004 of 2021 7 ## **APPENDIX OF OP(C) 2004/2021** |PETITIONERS' EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE FINAL DECREE DATED| ||31.01.2018 IN O.S.NO.927/2012 OF ADDITIONAL| ||MUNSIFF COURT II, THIRUVANANTHAPURAM.| |Exhibit P2|TRUE COPY OF THE E.P.NO.220/2019 IN| ||O.S.NO.927/2012 FILED BY THE PETITIONERS| ||BEFORE THE ADDITIONAL MUNSIFF COURT II,| ||THIRUVANANTHAPURAM.| |Exhibit P3|TRUE COPY OF THE E.A.NO.551/2019 IN| ||E.P.NO.220/2019 IN O.S.NO.927/2012 FILED BY| ||THE RESPONDENTS 1 TO 3 BEFORE THE ADDITIONAL| ||MUNSIFF COURT II, THIRUVANANTHAPURAM.| |Exhibit P4|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONERS IN E.A.NO.551/2019 IN| ||E.P.NO.220/2019 IN O.S.NO.927/2012 BEFORE THE| ||ADDITIONAL MUNSIFF COURT II,| ||THIRUVANANTHAPURAM.| |Exhibit P5|TRUE COPY OF THE SALE DEED NO.1953/1955 OF| ||SRO, KAZHAKKOOTTAM.| |Exhibit P6|TRUE COPY OF THE TAX RECEIPT DATED 04.03.1983| ||ISSUED FROM ATTIPRA VILLAGE OFFICE.| |Exhibit P7|TRUE COPY OF THE PLAINT FILED BY THE FATHER| ||OF THE OBSTRUCTION PETITIONERS IN| ||O.S.NO.46/1973 BEFORE THE SUB COURT,| ||THIRUVANANTHAPURAM.| |Exhibit P8|TRUE COPY OF THE COMMON ORDER DATED| ||12.10.2017 IN I.A.NOS.3273/2017, 3274/2017| ||AND I.A.NO.869/2015 IN O.S.NO.927/2012 OF| ||ADDITIONAL MUNSIFF COURT II,| OP(C) No.2004 of 2021 8 THIRUVANANTHAPURAM. Exhibit P9 TRUE COPY OF THE COMMISSION APPLICATION E.A.NO.220/2020 IN E.P.NO.220/2019 IN O.S.NO.927/2012 FILED BY THE RESPONDENTS 1 TO 3 BEFORE THE ADDITIONAL MUNSIFF COURT II, THIRUVANANTHAPURAM. Exhibit P10 TRUE COPY OF THE E.A.NO.296/2020 IN E.P.NO.220/2019 IN O.S.NO.927/2012 FILED BY THE 4TH RESPONDENT/JUDGMENT DEBTOR BEFORE THE ADDITIONAL MUNSIFF COURT II, THIRUVANANTHAPURAM. Exhibit P11 TRUE COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER BEFORE THE COURT BELOW AS PER EXHIBIT P9 APPLICATION. Exhibit P11(a) TRUE COPY OF THE SURVEY PLAN SUBMITTED BY THE COMMISSIONER BEFORE THE COURT BELOW AS PER EXHIBIT P9 APPLICATION. Exhibit P12 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN E.A.NO.220/2020 IN E.P.NO.220/2019 IN O.S.NO.927/2012 BEFORE THE ADDITIONAL MUNSIFF COURT II, THIRUVANANTHAPURAM. Exhibit P13 TRUE COPY OF THE E.A.NO.438/2021 IN E.A.NO.551/2019 IN E.P.NO.220/2019 IN O.S.NO.927/2012 FILED BY THE RESPONDENTS 1 TO 3 BEFORE THE ADDITIONAL MUNSIFF COURT II, THIRUVANANTHAPURAM. Exhibit P14 TRUE COPY OF THE OBJECTION IN E.A.NO.438/2021 IN E.A.NO.551/2019 E.P.NO.220/2019 IN O.S.NO.927/2012 FILED BY THE PETITIONERS BEFORE THE ADDITIONAL MUNSIFF COURT II, THIRUVANANTHAPURAM. OP(C) No.2004 of 2021 9 |Exhibit P15|TRUE COPY OF THE ORDER DATED 22.10.2021 IN| |---|---| ||E.A.NO.438/2021 IN E.A.NO.551/2019 IN| ||E.P.NO.220/2019 IN O.S.NO.927/2012 OF| ||ADDITIONAL MUNSIFF COURT II,| ||THIRUVANANTHAPURAM.| |Exhibit P16|TRUE COPY OF THE TAX RECEIPT DATED 24.04.2017| ||ISSUED BY THE ATTIPRA VILLAGE OFFICER.| |Exhibit P17|TRUE COPY OF THE POSSESSION CERTIFICATE DATED| ||20.06.2017 ISSUED BY THE VILLAGE OFFICER,| ||ATTIPRA.| |Exhibit P18|TRUE COPY OF THE TAX RECEIPT OF THE| ||OBSTRUCTION PETITIONERS' FATHER| ||CHANDRASEKHARAN NAIR DATED 10.02.2005 ISSUED| ||FROM THE ATTIPRA VILLAGE OFFICER.| |Exhibit P19|TRUE COPY OF SAID TAX RECEIPT DATED| ||09.09.1996 ISSUED FROM ATTIRA VILLAGE OFFICE.| |Exhibit P20|TRUE COPY OF THE RELEVANT PAGE OF CORRELATION| ||STATEMENT OF THE PROPERTY OF OBSTRUCTION| ||PETITIONERS.| |Exhibit P21|TRUE COPY OF THE LETTER DATED 24.11.2006| ||ISSUED BY THE REGIONAL SURVEY JOINT DIRECTOR.| // TRUE COPY // P.A. TO JUDGE