IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
M.A.(EXE.) NO.7 OF 2016
AGAINST THE ORDER/JUDGMENT IN O.P.NO.174/2009 OF FAMILY COURT,
THIRUVALLA
APPELLANT/S:
V.SUJATHAKUMARI, AGED 52 YEARS,
W/O.K.J.RAVI, KOYITHARA HOUSE, PARIMALA MURI,
KADAPRA VILLAGE, THIRUVALLA TALUK,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER,
RADHAKRISHNA PANICKER, AGED 51, NARAYANA PILLAI,
KALLOICKAL HOUSE, PUTHUSSERRY, KALLOOPPARA VILLAGE,
MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.JOSEPH GEORGE
SRI.BIJO THOMAS GEORGE
RESPONDENT/S:
1 SANGEETHA NAIR, D/O. SOMASEKHARAN NAIR,
UPASANA HOUSE, PALLIKKUNNU KARA,
MUTTAMPALAM VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT-686004.
2 VISWANATHA PANICKER, KULATHILETTU HOUSE,
PUTHUSSERI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK,
PATHANAMTHITTA DISTRICT-689584.
3 KAMALAMMA, W/O. VISWANATHA PANICKER,
KULATHILETTU HOUSE, PUTHUSSERI, KALLOOPPARA
VILLAGE,MALLAPPALLY TALUK, PATHANAMTHITTA
DISTRICT-689584.
4 SUNIL KUMARI, D/O.VISWANATHA PANICKER,
KULATHILETTU HOUSE, PUTHUSSERI, KALLOOPPARA
VILLAGE,MALLAPPALLY TALUK, PATHANAMTHITTA
DISTRICT-689584.
BY ADVS.
SRI.C.B.SREEKUMAR
SRI.BABU JOSE
SRI.BABU JOSE
SRI.N.P.PRAJEESH
SRI.RAJASEKHARAN
THIS MAT APPEAL (EXECUTION) HAVING BEEN FINALLY HEARD ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.(Exe.) No.7/2016 2
JUDGMENT
A.Muhamed Mustaque, J.
The dispute in this appeal is as to the symbolic delivery ordered, pursuant to the execution of the decree. There is hardly a dispute in regard to the interest and right available to the petitioner herein, who claims to be a joint owner along with the judgment debtors, who are respondents 2 and 3. The symbolic delivery only clothes an interest in the immovable property to the decree holder who was the auction purchaser. It will not disturb the parties who are in physical possession of the property concerned. That be so, the appellant is free to work out any remedy available for partitioning the property in the appropriate forum. The observation in the impugned judgment is that the appellant only has a nominal right in the facts and circumstances unwarranted, in as much as, that the appellant is one of the co-owners of the property. What is sold and delivered is the share of the judgment debtor and that be so, what is given in a symbolic delivery is the possessory right that belongs to those judgment debtors who have right in the property.
M.A.(Exe.) No.7/2016 3
Clarifying the impugned judgment to that extent, the appeal is disposed of. It is reported at the Bar that the appellant already filed a partition suit and obtained a preliminary decree from the civil court. Necessarily, the appellant is bound to implead the auction purchaser/decree holder in such proceedings.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
SOPHY THOMAS JUDGE ln