Kerala High Court
Heera vs Jose Rixon P.B on 8 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
OP(C).No.1813 OF 2020
IN EA.NO.268/2020 AND EA.NO.366/2020 IN EP.NO.226/2016 IN OS.NO.
30/2014 OF PRINCIPAL SUB COURT,ERNAKULAM
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PETITIONERS/PETITIONERS:
1 HEERA
AGED 47 YEARS
W/O. V.H SUNISH, KOVIPARAMBIL HOUSE,
CC NO 50/213 A, MANIMALA ROAD,
EDAPPALLY P.O, ERNAKULAM, KOCHI 682 024
2 CHINNA S KARIPPAI,
AGED 67 YEARS
W/O. K.P SUJATHAN, KOVIPARAMBIL HOUSE,
CC NO. 50/213 A, MANIMALA ROAD,
EDAPPALLY P.O, ERNAKULAM, KOCHI 682 024
BY ADVS.
SRI.C.U.SANGEETH
SRI.ALEX ANTONY SEBASTIAN P.A.
SMT.AMRITA JAYARAM
SHRI.M.B.VINOD
RESPONDENT/DECREE HOLDER:
JOSE RIXON P.B.,
AGED 35 YEARS
S/O. BASIL,PALLIPARAMBIL HOUSE, MULAMPILLI DESOM,
KADAMAKKUDI VILLAGE, KANAYANNUR TALUK, PIN 682 027,
REPRESENTED BY POWER OF ATTORNEY HOLDER, XAVIER
REBIN P.B S/O. BASIL, AGED 35 YEARS, PALLIPARAMBIL
HOUSE, MULAMPILLI DESOM, KADAMAKKUDI VILLAGE,
KANAYANNUR TALUK, PIN 682 027
R1 BY ADV. SRI.BASIL MATHEW
R1 BY ADV. SRI.NINAN JOHN
R1 BY ADV. SMT.SANJANA SARA VARGHESE ANNIE
R1 BY ADV. SRI.ANU STEPHEN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O.P.(C) No.1813 of 2020
==================
Dated this the 8th day of January, 2021
JUDGMENT
The dismissal of an application seeking
impleadment in an execution proceeding and also the
refusal to stay the execution under Order XXI Rule
29 CPC are under challenge in this original
petition.
2. The petitioners are the daughter and wife of
one Sujathan who is the judgment debtor. The decree
is one for money.
3. In the suit, two items of properties were
attached before judgment. Out of the two items, one
item is the property now being proceeded against in
the present execution petition - 1.33 cents. As
regards the other item of property the first
petitioner herein-daughter of the judgment debtor,
filed a claim petition as IA 4760/2015. The claim
was allowed and the property was released from
attachment. As regards the other item of property
attached viz. the property now being proceeded
O.P.(C) No.1813 of 2020
against in execution-1.33 cents, there was no
claim.
4. In the course of execution of the decree
against the property in question - 1.33 cents, the
first petitioner filed a petition Order XXI Rule 99
and 101 of CPC, as EA 901/2019, claiming rights
over the property on the strength of a document
dated 29.07.2013. The application was dismissed
holding it to be not maintainable and that the
remedy is to file a petition under Order XXI Rule
58 CPC. Pursuant thereto the first petitioner filed
a claim petition under the said provisions as EA
914/19.
5. In EA 914/2019 filed under Order XXI Rule 58
CPC, the first petitioner claimed absolute right
over the property (1.330 cents) on the strength of
Ext.A3 document dated 29.07.2013. The court found
that the document is one "created" by the
petitioner to claim right over the property. It was
held that the petitioner does not have any right
over the property. The application was accordingly
dismissed.
O.P.(C) No.1813 of 2020
6. On dismissal of EA 914/2019, the property
was sold.
7. It is at this stage that the present
applications seeking impleadment of the petitioners
as parties to the execution petition and for stay
of proceedings in execution on the ground that they
have filed a suit as OS 240/2020 before the
Munsiff's Court, Ernakulam for setting aside the
attachment effected in the suit and for declaration
of title of the petitioners over the property -
1.33 cents.
8. In EA 914/2019 filed under Order XXI Rule 58
CPC, the claim of the first petitioner on the
strength of Ext.A3 document dated 29.07.2013 was
negatived finding against the genuineness of the
document. Moreover, Ext.A3 is an unregistered sale
deed, the sale consideration stated to be `15
lakhs. As held by the court below Section 17(1)(b)
and Section 49 of the Registration Act applies and
the document cannot affect immovable property and
is inadmissible in evidence. These aspects were
already held in execution while adjudicating EA
O.P.(C) No.1813 of 2020
914/2019. The claim of the petitioner is barred by
res judicata.
9. As regards the claim of the petitioners that
they have right of easement of necessity over the
property in question for access to the adjoining
property covered under Ext.B1 Document
No.4216/2013, the court below has noticed that, on
the southern boundary of the property covered under
Ext.B1 is a public road, which prima facie
negatives the claim of easement of necessity. As
regards the claim of easement by prescription
through the property in question, the court below
noticed that the adjoining property to which the
right of access is claimed, was purchased by the
predecessor of the petitioner only in the year 2001
and that it falls short of the statutory period for
acquiring an easement by prescription. Though it is
doubtful that whether the claim of easement could
have been urged and pressed for consideration in
the present applications, at any rate, the claim of
easement also was thus rightly negatived by the
court below.
O.P.(C) No.1813 of 2020
10. As regards the contention of the
petitioners that further proceedings in execution
has to be stayed under Order XXI Rule 29 pending
disposal of OS 240/2020 filed by them before the
Munsiff's Court, Ernakulam, as rightly held by the
court below it is not a suit between the judgment
debtor and the decree holder attracting Order XXI
Rule 29 CPC.
11. Though the learned counsel Sri.Kesava
Kaimal would urge that OS 240/2020 is a suit filed
under order XXI Rule 58(5) CPC, I am unable to
agree with the same. The claim raised by the first
petition was already adjudicated in EA 914/2019 and
disposed of on its merits. Further, the suit OS
240/2020 under Order XXI Rule 58(5) would lie only
in a case where the claim or objection is preferred
and the court refuses to entertain the claim on the
ground that the property attached has already been
sold or where the claim is considered as designedly
or unnecessarily delayed. Thus, OS 240/2020 is not
a suit filed under the said provision.
O.P.(C) No.1813 of 2020
12. The petitioners are neither necessary or
proper parties to the execution petition. The
execution proceedings are not liable to be stayed.
The court below was right in dismissing the
application. The original petition fails and is
accordingly dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF E.A NO 268/2020 IN O.S
30/2014-SUB COURT ERNAKULAM DTD 23-06-2020
EXHIBIT P2 TRUE COPY OF COUNTER AFFIDAVIT IN EA NO.
268/2020 FILED BY THE DECREE HOLDER
EXHIBIT P3 TRUE COPY OF E.A NO. 366/2020 IN O.S
30/2014-SUB COURT EERNAKULAM DTD 16-07-2020
EXHIBIT P4 TRUE COPY OF COUNTER AFFIDAVIT IN EA NO.
366/2020 IN O.S 30/2014 FILED BY DECREE
HOLDER
EXHIBIT P5 TRUE COPY OF COMMON ORDER IN EA NO.
268/2020 AND 366/2020-SUB COURT ERNAKULAM
DTD 11-09-2020
EXHIBIT P6 TRUE COPY OF JUDGMENT IN C.R.P 9/1990 OF
HON'BLE HIGH COURT OF KERALA DTD 19-03-1990
EXHIBIT P7 TRUE COPY OF THE O.S 240/2020-MUNSIFF COURT
ERNAKULAM DTD 19-02-2020
EXHIBIT P8 TRUE COPY OF INJUNCTION ORDER IN I.A NO.
2/2020 IN O.S 240/2020 DTD 25-02-2020
EXHIBIT P9 TRUE COPY OF RIGHT CONSENT DEED DT 29-07-
EXHIBIT P10 TRUE COPY OF COMMON ORDER IN E.A NO.
906/2009 E.A NO. 907/2019 AND E.A NO.
909/2019 IN O.S 30/2014 SUB JUDGE ERNAKULAM
DTD 28-11-2019
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