Savithri v. Udayabhanu, Padmini, Yamuna, Chandrabhan u and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M. SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH MAY, 2008 / 7TH JYAISHTA 1930 WP(C).No. 33447 of 2007(F) -------------------------AGAINST THE ORDER DATED / / IN EA.328/06,EP.47/06,IA.598/97 IN OS.44/1973 OF SUB COURT, TIRUR .................... PETITIONER: RES. IN E.A.327/06 AND 1ST RES. IN EA 328/2006 ---------------------------------------------------------- SAVITHRI, W/O. RAMAKRISHNAN, HOUSEWIFE, RESIDING AT KEERTHANAM, POST NANGADATH PEEDIKA, TEMPLE GATE, THALASSERY. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: - ------------- 1. UDAYABHANU, S/O. RAMACHANDRAN, AGED 52 YEARS, UNIKKAL HOUSE, PARIYAPURAM AMSOM, TANUR DESOM, TIRUR TALUK-673321 2. PADMINI, W/O. RAMACHANDRAN, AGED 75 YEARS, UNIKKAL HOUSE, PARIYAPURAM AMSOM, TANUR DESOM, TIRUR TALUK-673321 3. DAUGHTER YAMUNA, D/O. LATE RAMACHANDRAN, AGED 44 YEARS, HOUSEWIFE, UNIKKAL HOUSE, PARIYAPURAM AMSOM, TANUR DESOM, TIRUR TALUK-673321. 4. CHANDRABHANU, S/O. LATE RAMACHANDRAN, AGED 45 YEARS, UNIKKAL HOUSE, PARIYAPURAM AMSOM, TANUR DESOM, TIRUR TALUK-673321 BY ADV. SRI.P.CHANDRASEKHAR FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## ’ Petitioner s Exhibits:- Ext.P1:- True copy of the petition 327/2006 in EP47/2006 in IA 598/97 (FD) in O.S. 44/73 Ext.P2:- True copy of the counter statement Ext.P3:- True copy of the preliminary decree for partition in O.S.44/1973 on the file of Subordinate Judge, Tirur. Ext.P4:- True copy of the notice of the final decree following Ext.P3 preliminary decree Ext.P5:- True copy of the deed of partition 1193/1978 Ext.P6:- True copy of the judgment of this Court dt. 25.10.06 Ext.P7:- True copy of the judgment of this court dt.19.7.2007 Ext.P8:- True copy of the judgment of this court dt. 6.8.07 Ext.P9:- True copy of the petition E.A.328/2006 Ext.P10:-True copy of the counter statement Ext.P11:-True copy of the order on Ext.P1 petition Ext.P12:-True copy of the order in Ext.P9 petition EA 328/06 dated 18.10.07. ## **M. SASIDHARAN NAMBIAR,J.** ----------------------------------------- ## W.P(C) NO.33447 OF 2007 ----------------------------------------DATED THIS THE 28TH DAY OF MAY, 2008 ## **JUDGMENT** Petitioner is the 12[th] defendant in O.S.44 of 1973. Ext.P3 preliminary decree was passed on 20.12.1977 holding that the plaint schedule properties are available for partition and they are to be divided and shares are to be allotted as stated in the preliminary decree. Subsequently Ext.P4 final decree was passed on 7.10.2003. As per clause 28 of Ext.P4 final decree plots M1, M2, M3 and M4 in Ext.C5 plan were allotted to the petitioner. Petitioner filed EP 47 of 2006 for taking delivery of the property allotted to her under Ext.P4 final decree. At that stage one of the children of Ramachandran, who was 30[th] defendant in Ext.P3 preliminary decree, filed a petition before the Executing Court contending that as Ramachandran died before passing of the final decree and his legal heirs were not impleaded petitioner is not entitled to take delivery of the property. That petition was dismissed. It was challenged before this court in W.P.(C) 23007 of 2006. Under Ext.P6 judgment this court dismissed that petition holding that as per Ext.P4 final decree no share was allotted to WP(C) 33447/07 2 the 30[th] defendant Ramachandran and therefore his legal heirs are not to be impleaded in the final decree and for not impleading the legal heirs of Ramachandran executability of the decree cannot be challenged. Thereafter the said writ petitioner along with his mother filed two applications before the Executing Court EA327 of 2006 and 328 of 2006 which are Exts.P1 and P9 petitions herein (EA327 of 2006 and 328 of 2006). The petitions were filed both under Section 47 and Rule 99 of XXI of Code of Civil Procedure. Thereafter the said petitioners approached this court for a direction for early disposal of the petitions by filing W.P.(C) 22211 of 2007. Under Ext.P7 judgment this court directed the Executing Court to dispose the applications within 6 months from 19.7.2007. Petitioner herein to whom notice was not sent by this court before passing Ext.P7 judgment appeared before this court and filed Review Petition 735 of 2007. Under Ext.P8 order this court disposed the Review Petition directing the Executing Court to conduct an enquiry regarding the maintainability of the applications at the threshold level and find whether the petitioners have any right to prefer a claim and if the claim is not maintainable to dispose the petitions at the threshold. Thereafter Ext.P1 and P9 petitions were heard by the executing WP(C) 33447/07 3 court. Under Ext.P11 order it was found that though petitions are not maintainable under Rule 99 of Order XXI of Code of Civil Procedure, as the petitioners in the applications are claiming under Ramachandran who was the 30[th] defendant in the suit, they are parties to the decree and therefore their claim has to be adjudicated under Section 47of the Code. The petitions were thereafter posted for enquiry. Exts.P11 and P12 orders are challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for the petitioner and respondents were heard. Learned counsel appearing for the petitioners pointed out that the Ramachandran though was the 30[th] defendant in the suit, did not file a written statement and did not raise any contention with regard to the availability of the plaint schedule property for partition and under Ext.P3 preliminary decree and P4 final decree no share was allotted to Ramachandran and therefore though he was a former party to the suit, he is not a party to the suit as provided under Section 47 of Code of Civil Procedure. Reliance was placed on the decision of a learned Single Judge of this court in **Francis v. Joseph Scaria (1992(1) KLJ65)** . The learned counsel argued that when WP(C) 33447/07 4 respondents are claiming right under Ext.P5 partition deed, which came into existence subsequent to the institution of the suit and the right claimed by them is the right which was earlier allegedly available with Ramachandran, who did not raise any contention in the suit cannot challenge the executability of the decree and respondents who obtained right subsequent to the suit are not entitled to object the executability of the decree by filing a petition under Section 47 of the Code of Civil Procedure. The learned counsel relying on a decision of the Apex Court in **Usha Sinha v. Dina Ram and Others** ( **2008 SAR Civil 448)** argued that when respondents are claiming right under one of the defendants in the suit, they are not entitled to file any petition under rule 99 of Order XXI of Code of Civil Procedure with respect to the subject matter of the decree and the Executing Court should have held that Ext.P1 and P9 petitions are not maintainable either under Section 47 or Rule 99 of Order XXI of Code of Civil Procedure. It was argued that attempt is only to protract the delivery by taking out a Commission and a comparison of Item No.8 of the Ext.P3 preliminary decree with Item No.3 of the A schedule property and Item No.1 of the B schedule property of Ext.P5 partition deed relied on by WP(C) 33447/07 5 respondents establish that they are the same property. 3. Learned counsel appearing for the respondents argued that the property claimed by the respondents under Exts.P1 and P9 petitions are not part of any of the property divided under Ext.P5 final decree. It was argued that the properties allotted to the respondents under Ext.P5 partition deed are different properties and under the guise of taking delivery of the property allotted to the respondents under Ext.P5, petitioner is not entitled to take delivery of the property of the respondents for the reason that respondents are claiming right originally available with Ramachandran, the 30[th] defendant in the suit. It was vehemently argued that the right claimed by respondents is not the right which was not in respect of the property which was decided by the court under Ext.P3 preliminary decree or P4 final decree and therefore respondents are entitled to raise objection to the execution of the decree in respect of their property and their petition is liable to be considered under Rule 99 of Order XXI of Code of Civil Procedure. 4. As rightly pointed out by the learned counsel appearing for the petitioner, respondents are the children of Ramachandran who was defendant No.30 in the suit. Under WP(C) 33447/07 6 Ext.P1 and P9 petitions filed before the Executing Court respondents are claiming right over the parties allotted under Ext.P5 partition deed. The right claimed by them is the right which was available with Ramachandran. When Ramachandran did not dispute the availability of the plaint schedule properties claimed in O.S.44 of 1973 and did not raise any claim for any portion of the property or that they are not available for partition or are to be excluded while dividing, respondents are not entitled to claim any right in respect of the plaint schedule properties which are directed to be divided under Ext.P3 preliminary decree. As Ramachandran cannot dispute the same, respondents who are claiming under Ramachandran and that too under Ext.P5 deed which came into existence after the suit cannot challenge the decree. To that extent respondents are not entitled to dispute the executability of the decree under Section 47 or the Code of Civil Procedure. As held by this court in Francis’s case, for the purpose of considering the question whether respondents are parties to the decree as contemplated under Section 47 of the Code the question to be decided is whether the right of that party was agitated and decided in the suit. If the right was not agitated or decided he cannot be treated as a party for the purpose of WP(C) 33447/07 7 Section 47. If that be so, when Ramachandran under whom respondents claimed right did not raise any claim in respect of any portion of the plaint schedule property, they are claiming the right which was with Ramachandran, they are not entitled to raise objection based on Section 47. Therefore in any view of the matter the petitions are not maintainable under Section 47 of the Code of Civil Procedure. 5. Then the question is whether the petitions are maintainable under Rule 99 of Order XXI of Code of Civil Procedure. When respondents are claiming right under defendant No.30 who was a party to the suit and that too based on a transfer effected subsequent to the date of instituting the suit, respondents are not entitled to file a petition under Rule 99 of Order XXI. True if the properties claimed by them are not any part of the decree schedule property, being third parties they are entitled to dispute the execution of the decree and taking delivery of the property in respect of that property. But they cannot object to the decree holder taking delivery of the property allotted to her under Ext.P4 final decree. As stated earlier under Clause No.28 of Ext.P4 final decree plots M1, M2, M3 and M4 in Ext.C5 plan are allotted to the petitioner. As respondents are claiming under 8 WP(C) 33447/07 the defendant No.30 in the suit, they cannot dispute the right of the petitioner from taking delivery of plots M1, M2, M3 and M4 as shown in Ext.C5 plan. Even if any portion of this property are covered under Ext.P5 partition deed, respondents are not entitled to cause any objection to the delivery. Therefore there is no necessity to further considering Ext.P1 and P9 applications by Executing Court. Exts.P11 and P12 orders are set aside. Ext.P1 and P9 petitions stand dismissed. Executing Court is directed to deliver plots M1, M2, M3 and M4 in Ext.C5 plan of Ext.P4 final decree after identifying the properties as shown in C5 plan. ## **M. SASIDHARAN NAMBIAR JUDGE** Okb/-