Thankappan Nair Sunil Kumar Kunchukonam Varuna Bhavan, Kottukal Desom, Village (Appellant) v. Lekshmi Pillai Parvathy Pillai Thittachal Veedu, Venpakal Desom, Athiyannoor, Pakuthy (died) and his legal heirs (1) Raman Pillai Raveendran Nair; (2) Parvathy Pillai Indira Devi Sree Nilayam; (3) India Devi Yamuna Devi; (4) Gopalakrishnan Nair Praveen Kumar; (5) Gopalakrishnan Nair Prathapan; (6) Lakshmy Pillai Karthiyayni Pilllai; (7) Velayudhan Pillai Jyothishkumar; (8) Karthiyayani Pillai Saleela Kumari; (9) Velayudhan Pillai Asaleesh Kumar (Respondents)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944** ## **EX.SA NO. 15 OF 2008** **AGAINST THE ORDER/JUDGMENT IN AS 84/2003 OF SUB COURT,NEYYATTINKARA** **E.A. 110/2001, EP 69/2000 IN OS 595/1986 OF II ADDITIONAL MUNSIFF COURT** ## **NEYYATTINKARA** ## **APPELLANT/APPELLANT/CLAIM PETITIONER:** **THANKAPPAN NAIR SUNIL KUMAR KUNCHUKONAM VARUNA BHAVAN, KOTTUKAL DESOM, -DO- VILLAGE. BY ADV SRI.R.GOPAN** ## **RESPONDENTS/RESPONDENTS/DECREE HOLDER:** **LEKSHMI PILLAI PARVATHY PILLAI THITTACHAL VEEDU, VENPAKAL DESOM, ATHIYANNOOR, PAKUTHY (DIED)** **1. RAMAN PILLA RAVEENDRAN NAIR, CHIRAG HOUSE, PUNNAIKAL EDAVAZHY, KOTTAIKAKOM, THIRUVANANTHAPURAM.** - **2 PARVATHY PILLAI INDIRA DEVI SREE NILAYAM, POOVAR DESOM, THIRUPURAM PAKUTHY.** - **3 INDIA DEVI YAMUNA DEVI OF -DO-** - **4 GOPALAKRISHNAN NAIR PRAVEEN KUMAR -DO-** - **5 GOPALAKRISHNAN NAIR PRATHAPAN -DO-** - **6 LAKSHMY PILLAI KARTHIYAYNI PILLAI KIZHAKKE VARUVILLAKATHU VEEDU, MANACAUD, THIRUVANANTHAPURAM.** - **7 VELAYUDHAN PILLA JYOTHISHKUMAR** - **-DO-** - **8 KARTHIYAYANI PILLAI SALEELA KUMARI-DO-** - **9 VELAYUDHAN PILLAI ASALESH KUMAR KIZHAKE VARUVILAKATHU VEEDU, MANACAUD, THIRUVANANTHAPURAM, (RESPONDENTS 1 AND 2 ARE RECORDED AS LEGAL HEIRS OF DECEASED LEKSHMI PILLAI PARVATHY PILLAI AS PER ORDER IN I.A 1233/2008 DATED 31.7.2008** - **BY ADVS. J.HARIKUMAR** - **SRI.HARIKUMAR.S.** **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2022,** **THE COURT ON 29.07.2022 DELIVERED THE FOLLOWING:** EX.S.A.No.15/2008 **2** ## **JUDGMENT** This Execution Second Appeal has been directed against the judgment in A.S.No.84/2003 on the file of Sub Court, Neyyattinkara which arose out of order in E.A.No.110/2001 in E.P.No.69/2000 in O.S.No.595/1986 on the file of II Additional Munsiff's Court, Neyyattinkara. 2. Appellant is the son of 16[th] judgment debtor and filed petition under Order 21 Rule 99 read with Section 151 CPC. The commissioner appointed to fix the boundaries of the decree schedule property visited the petition schedule property for executing the order. No decree has been obtained with respect to the petition schedule property having an extent of 10½ cents. It was not taken delivery by the decree holders. The tenancy right pertaining to the petition schedule property was released by the tenants in favour of the mother of the petitioner, the 16[th] judgment debtor in the year 1118 ME. The mother of the petitioner executed a settlement deed in favour of the petitioner EX.S.A.No.15/2008 **3** and his brother as per document No.596/2000 and accordingly they obtained right and possession over that property. Mother also executed a sale deed in favour of father in the year 1997 with respect to a portion of petition schedule property. After the death of father the property devolved upon the mother, the petitioner, as well as the brother. The mortgage right pertaining to the petition schedule property is also released as per document No.58/2000. So according to the petitioner neither the plaintiff nor the defendants in the suit have got any manner of right over the petition schedule property and it was not taken delivery also by the Amin. Under the colour of the delivery list decree holders tried to trespass into the petition schedule property and thereupon the brother of the petitioner filed O.S.No.983/2000 before the First Additional Munsiff's Court, Neyyattinkara and an interim injunction was granted restraining the decree holder from committing waste in the property. But the plot in Ext.C1(d) plan and the petition schedule property are two different properties. So according to the petitioner he has independent right over the property and hence the petition. 3. The second plaintiff filed objection contending that the EX.S.A.No.15/2008 **4** petition is not maintainable under Order 21 Rule 99. There is no property as described in the petition in existence. No objection was filed by the petitioner at the time of visit of the commissioner in O.S.No.595/1986. The property covered by document No.11/1118 is oodukkoor. The otti and lease have not been released. Syamala Devi has no janmam right. Syamala Devi and first defendant has no relation and hence she has no right to execute the release deed. The documents relied on by the petitioner are fabricated documents and executant had no right to execute that document. Mother of the petitioner was the 16[th] defendant in the suit. The petitioner has no right to raise any contention which were not raised by the 16[th] defendant. Amin delivered the property and decree holders taken delivery of the property also. When the commissioner visited the property, objection was raised. Hence he prayed for dismissal of the petition. 4. PWs 1 to 3 examined and Exts.A1 to A6 marked from the side of the petitioner. Ext.C1 and C1(a) were also marked. The learned Munsiff on evaluating the rival contentions found that as per Ext.A1 the executor obtained the property as per Sale EX.S.A.No.15/2008 **5** Deed No.58/2000. But at that time the executor already transferred 3.500 cents out of 10.5 cents in favour of her husband as per Ext.A4 alleging that she obtained the property as per document No.5195/1118 by inheritance. The title deed of the executor was not produced to prove from whom she obtained the title over the property. The contradictions in the recitals in Exts.A1 and A4 was further evaluated and finding that the petitioner has not obtained any right with respect to the decree scheduled property, the petition was ultimately dismissed. 5. Against which, the petitioner took up the matter before the Sub Court, Neyyattinkara and as per judgment in A.S.No.84/2003 the learned Sub Court dismissed the appeal finding that the petitioner has not proved the right of her predecessor to execute Ext.A1 in her favour. It is also found that the documents created pending the proceedings in O.S.No.595/1986 and hence the right if any obtained is hit by lis pendens and accordingly it was found that the petitioner has not succeeded to prove that the property delivered in O.S.No.595/86 is the property claimed by the petitioner. 6. As per the order dated 15.10.2008 a learned Single EX.S.A.No.15/2008 **6** Judge of this Court admitted this appeal and notice was issued to respondent. No substantial question of law has been formulated. 7. Service is complete against the respondents. Respondent No.7 appeared through Adv. S. Harikumar. 8. Heard the learned counsel for the appellant as well as the learned counsel for the 7[th] respondent. 9. The main contention of the learned counsel for the petitioner is that the petitioner's property described in the petition schedule is not the decree schedule property. It is contended that the commissioner never came to their property and delivery of their property was not effected and under the colour of the delivery record, the decree holders are attempting to trespass upon their property. According to him, the decree schedule property and the petition schedule property is entirely different and as per the decree schedule it has been described as 'paddy land' whereas the commissioner's report would show that it is lying as a 'reclaimed land'. 10. The learned counsel for the respondents on the other hand would vehemently contend that the claim petition filed EX.S.A.No.15/2008 **7** itself is not maintainable since the specific contention of the petitioner is that the petition schedule property is not decree schedule property and their property was not delivered by the Amin. 11. The execution court can entertain objections to the execution in respect of the subject matter of execution proceedings and not in respect of any other property. So an application filed under Order 21 Rule 97 CPC will not lie with respect to a property which is not the subject matter of the execution. The property described under Order 21 Rule 97 and 99 CPC is with respect to the property which is the subject matter of the execution and not in respect of any other property. It is relevant in this context to quote A. Chidambar v. Leela [MANU/KA/0280/1989 : ILR 1989 KARNATAKA 3230] wherein while dealing with Order 21 Rule 97 and 99 a learned Single Judge of Karnataka High Court held that 'property' and 'suit property' referable therein are only subject matter of execution and executing court cannot entertain objections to the execution in respect of any other property. Hence an application filed under Order 21 Rule 97 which did not relate to the subject EX.S.A.No.15/2008 **8** matter of execution cannot be entertained by the executing court. 12. In the present case, the specific allegation of the petitioner is that under the colour of the execution of the decree the decree holders are attempting to trespass upon the petitioner's property. It would indicate that the specific case of the petitioner is that the petition schedule property and the decree schedule property are not one and the same. The contentions raised by the appellant before the first appellate court also would go to show that the attempt of the petitioner is to establish that the decree passed is for an entirely different property and even the suit is not with respect to the petition schedule property. In the appeal memorandum also it is alleged that the petition schedule property is in the 'Puthoor Kandam Purayidam' whereas the decree schedule property is 'Chembum Kandam Nilam'. So the entire attempt of the petitioner is to establish that the decree schedule property and the petition schedule property are not one and the same and are different properties. If that be so, legally, the petitioner is not entitled to file a petition under Order 21 Rule 97 or 99 CPC. So in view of EX.S.A.No.15/2008 **9** the specific contention raised by the petitioner that the decree schedule property and the petition schedule property are not one and the same and the attempt of the decree holder is to trespass upon the petition schedule property under the colour of the decree the remedy of the appellant is to proceed against the respondent in accordance with law. 13. It has come out that the petitioner already filed a suit against the respondent with respect to the very same property before the 1[st] Additional Munsiff Court, Neyyattinkara as O.S.No.983/2000. Hence the petitioner already resorted to a remedy which is available to him as per law. 14. In merit also, the petition does not seem to have any sustainable ground to put forth a claim with respect to the petition schedule property. 15. As rightly contended by the learned counsel for the respondents, the petitioner is none other than the son of 16[th] defendant in the original suit (16[th] judgment debtor) in the E.P. Admittedly no property has been allotted to the 16[th] defendant as per the decree. Now the petitioner claims right over the decree schedule property on the basis of Ext.A1 executed by her mother EX.S.A.No.15/2008 **10** with respect to 10½ cents. It is also contended that mother had executed a sale deed in the year 1997 in favour of the father of the petitioner with respect to 3.500 cents of property. It has been concurrently found by the two courts that if at all a property was transferred from total 10.500 cents to the father in the year 1997 there will not be 10.500 cents of property remaining with the vendor so as to execute the settlement deed in favouf of the petitioner in the year 2000. Moreover the above suit has been filed in the year 1986. Both Ext.A1 as well Ext.A4 has been executed pending the proceedings. So the document based on which the appellant claimed right over the scheduled property is also hit by lis pendens. 16. In the above context, learned counsel for the respondents placed reliance on Jumailath Beevi and Ors. v. Rajeena & Ors. [2020 (4) KLT 907 : AIR 2020 Ker. 212 : 2020 (4) KHC 443] wherein it has been held that when a resistance or obstruction is offered by a transferee pendente lite, the scope of adjudication is to be confined only to the question whether person who resists or who was dispossessed was a transferee during the pendency of a suit in which the decree was passed. EX.S.A.No.15/2008 **11** 17. Here, first of all, it has already been found that the petitioner has no case that the decree scheduled property and the property over which the petitioner raises claim are one and the same. Moreover though Exts.A1 and A4 have been produced from the side of the petitioner it has been found concurrently by the courts below that the petitioner could not establish the title of the executor to execute the document in favour of him. Admittedly by the petitioner, even before executing Ext.A1 in his favour, mother had executed a document in favour of father in the year 1997 and the case of the petitioner is that father also died and after the death of the father the property devolved upon himself, his brother as well as the mother. The property sold to the father in the year 1997 as per Ext.A4 is 3.500 cents. By verifying the description in the document, it has been found by the first appellate court that as per Ext.A4 it has been stated that executor obtained the property by inheritance as per document No.5195 of 1118. Whereas, in Ext.A1 it has been stated that the executor obtained the property as per sale deed No.58/2000. So it has been concluded that if that be so the property covered by Exts.A1 and A4 can never be one and the same. But no prior title deed to prove the title of the executor i.e. the petitioner's mother EX.S.A.No.15/2008 **12** has been produced. So it has been found that the right of the executor to execute Ext.A1 is in dark and no document also has been produced to prove payment of tax from the side of the petitioner. Hence, as rightly found by the 1[st] appellate court petitioner could not establish the right of the mother over the property covered by Ext.A1 and Ext.A4. Furthermore facts and circumstances would reveal that the document by which the petitioner claims right over the property is pending the proceedings that too by the 16[th] judgment debtor and hence hit by lis pendens. Moreover the petitioner could not prove the valid title of the mother so as to execute Ext.A1 deed in his favour. 18. On an overall evaluation of the facts and circumstances, it has come out that the petitioner who is none other than the son of 16[th] defendant in the suit (16[th] judgment debtor in execution proceedings) is raising claim over the decree schedule property based upon a document executed by his mother with respect to a property over which petitioner could not establish title of vendor. So both courts below rightly dismissed the petition and I find no substantial question of law in order to entertain this execution second appeal. EX.S.A.No.15/2008 **13** Accordingly, the appeal is devoid of any merit and hence dismissed. Parties shall bear their respective cost. Sd/- SHG **M.R.ANITHA JUDGE**