V. Sujathakumari vs Sangeetha Nair
2022 Latest Caselaw 9049 Ker

           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.

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