Kedanchoth Muhammed v. Kakkuzhiyil Ummer (died) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941 CRP.No.426 OF 2016** **EP 95/2010 IN OS 132/1999 OF MUNSIFF COURT, VADAKARA REVISION PETITIONER/S:** **KEDANCHOTH MUHAMMED, AGED 62 YEARS S/O.KUNHITHARUVEYI HAJI, BUSINESS MAN, ERAMALA AMSOM DESOM, KUNNUMMAKKARA P.O., CHOMBALA VIA, VATAKARA TALUK, PIN-673 308.** **BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL)** ## **RESPONDENT/S:** |**1**|**KAKKUZHIYIL UMMER(DIED)**| |---|---| ||**AGED 75 YEARS**| ||**S/O.CHOHRAN, VATAKARA AMSOM, DESOM,**| ||**ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK,**| ||**PN-673 101 (DIED)****| |**2**|**KUNHAMI, W/O.UMMER, KAKKUZHIYIL HOUSE, VATAKARA**| ||**AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O.,**| ||**VADAKARA THALUK, PN-673 101 .**| |**3**|**KUNHIMARIYAM**| ||**AGED 62 YEARS**| ||**D/O.UMMER, KAKKUZHIYIL HOUSE, SWASTHAM,**| ||**VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA**| ||**P.O., VADAKARA THALUK, PN-673 101 .**| - **4 ABDUL SAMAL,AGED 58 YEARS,S/O.UMMER,TRADER, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** ## **Case No. CRP 426/16** -2- - **5 SUHARA, D/O.UMMER,SWASTHAM, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **6 AYSHA, AGED 50 YEARS, D/O.UMMER,SWASTHAM, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **7 RAMLA, D/O.UMMER,SWASTHAM, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **8 USMAN, AGED 45 YEARS, S/O.UMMER,TRADER, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **9 SHAREEFA,AGED 43 YEARS,D/O.UMMER,SWASTHAM, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **10 ARIFA, AGED 41 YEARS,D/O.UMMER,SWASTHAM, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **11 MUHAMMED,AGED 39 YEARS, S/O.UMMER,TRADER, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101 .** - **12 FAISAL, AGED 37 YEARS, S/O.UMMER,TRADER, KAKKUZHIYIL HOUSE, VATAKARA AMSOM, DESOM, ADAKKATHERUVU, VADAKARA P.O., VADAKARA THALUK, PN-673 101** **** Memo recorded... It is recorded that R1 died and respondents 2 to 12 are the legal heirs of the deceased R1 vide order dt.15.2.2017 in memo dated 15.2.2017 bearing cf no.566/17. sd. Assistant Registrar** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Case No. CRP 426/16** -3- ## **O R D E R** The petitioner is the decree holder in O.S. No.132 of 1999 on the files of the Munsiffs court, Vatakara. The decree was for the recovery of possession of 'B' schedule property from the original defendant. The trial court decreed the suit. The first appellate court, as per judgment in A.S. No.14 of 2001, confirmed the decree and judgment passed by the trial court. Thereafter, the appellate court, as per judgment in R.S.A. No.1289 of 2004, confirmed the decree and judgment passed by the trial court and the lower appellate court. Thereafter, the petitioner filed execution petition before the trial court as E.P. No.95 of 2010. While so, the original Judgment Debtor died and his legal heirs ## **Case No. CRP 426/16** -4- were impleaded as additional respondent Nos.2 to 12 as per order dated 29.11.2010 in E.A.No.223 of 2010. 2. A claim petition was filed before the execution court by a third party under Order 21 Rule 97 CPC. The said claim petition was dismissed by the court below. Thereafter, the court below, as per the order impugned dismissed the execution petition, against which this C.R.P. has been filed. 3. Service is complete. However, there is no appearance for the respondents. 4. Heard the learned counsel for the revision petitioner. 5 **.** It appears that the petitioner was the plaintiff in O.S. No.132 of 1999 on the files of the trial court. It further appears that the trial court decreed the above said ## **Case No. CRP 426/16** -5- suit, which was a suit for the recovery of possession of 'B' schedule property from the original defendant. The first appellate court and this court confirmed the decree and judgment passed by the trial court. Thereafter only, the above execution petition was filed. 6. The contention of the petitioner is that the original defendant was a lessee of the predecessor-ininterest of the petitioner under a registered kachit dated 18.4.1946. The 'B' schedule property therein is an open land lying on the north of A schedule property and it forms part of the 'A' schedule property. As 'B' schedule property was not included in the kachit, the predecessor-in-interest of the defendant had no right over the said property. Since the original defendant trespassed into 'B' schedule property and reduced it into his possession, the petitioner filed O.S. ## **Case No. CRP 426/16** -6- No.132 of 1999 before the trial court for recovery of possession of 'B' schedule property from the original defendant on the strength of his title. 7. Eventhough the decree and judgment passed by the trial court were confirmed in the appeal and the 2[nd] appeal, the execution court dismissed the execution petition stating that the decree obtained by the petitioner was by suppressing an assignment deed executed by Vijayakrishna Varma Raja to Sujatha, which was marked as Ext.A1 before the execution court in the claim petition. 8. The execution court observed in paragraph No.11 of the order impugned thus:- “It is important to bear in mind that as per Ext.A2, the petitioner never derived title to decree B schedule property. Petitioner who claimed to have derived title under Sujatha has ## **Case No. CRP 426/16** -7- not succeeded to establish his claim before this court. Though he had succeeded in O.S. No.132 of 1999 before the Trial Court, First Appellate Court and Second Appellate Court, it can be seen that it is by suppressing Ext.A1 document from the court. The claim petitioners title appears to be better than that of petitioner's title. But they failed to establish the identity of the property convincingly. But as far as petitioner is concerned, as already observed, he never derived title to the decree B schedule property. The given circumstances give reason to believe that petitioner had misleaded the court by producing fabricated document and obtained a decree. I am constrained to say that it is a fraudulent decree. Executing court is not bound to execute a fraudulent decree. On the other hand, there is nothing wrong in undoing a mistake committed by a court believing the misrepresentation made by the parties.” **Case No. CRP 426/16** -8- Stating so, the execution court dismissed the execution petition. 9. It is settled law that an execution court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 CPC. The above view gains support from the decision of the Three - Judge Bench of the Hon'ble Apex Court in Rameshwar Dass Gupta v. State of U.P. and another [(1996) 5 SCC 728]. Another Three - Judge Bench of the Hon'ble Supreme Court in S Bhaskaran v. Sebastian (dead) by legal representatives in the judgment in Civil Appeal No.7800 of 2014 (un-reported decision), followed the decision in Rameshwar Dass (supra) and held that an Execution Court **Case No. CRP 426/16** -9- cannot travel beyond the order or decree under execution. 10. In this case, the defendant contested the suit throughout. The claim petitioner was a third person. The decree and judgment passed by the trial court were affirmed in the first and the second appeals. Since the decree and judgment passed by the trial court had become final and conclusive, the execution court had no jurisdiction to hold that the decree cannot be executed as the decree was obtained by suppression of a document. For the said reason alone, the order impugned cannot be sustained. 11. It is also to be noted that the court below had recorded that the claim petitioner could not establish the identity of the property. It is not discernible as to how the court below proceeded on the assumption that the claim – **Case No. CRP 426/16** schedule property is the decree schedule property, when the identity of the claim schedule property was not established. For the said reason also, the finding by the court below cannot be sustained. In the result, this C.R.P. stands allowed, setting aside the order impugned and the court below is directed to continue with the execution proceedings. The proceedings of the court below shall stand relegated to the stage prior to the dismissal of E.P. No.95 of 2010 on 20.6.2016. ## sd ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/