Kerala High Court
K.V. Abraham @ Sunny vs Jolly @ Kaniyampadikkal Poulose on 21 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP(C) NO. 582 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 20.02.2024 IN E.P.NO.144 OF
2021 IN OS NO.3 OF 2001 OF MUNSIFF MAGISTRATE,
SULTHAN BATHERI
PETITIONER/3RD JUDGMENT DEBTOR:
K.V. ABRAHAM @ SUNNY
AGED 62 YEARSM, S/O.VARGHESE,
AGRICULTURIST, KANIYAMPADIKKAL VEEDU,
PURAKKADI AMSOM DESOM, MEENANGADI POST,
SULTHAN BATHERI, PIN - 673591
BY ADV K.P.SREEKUMAR
RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS 4 TO 8:
1 JOLLY @ KANIYAMPADIKKAL POULOSE
AGED 68 YEARS, S/O.SOSAMMA,
VAYALATHUMPATTAYIL, RESIDING AT MEENANGADI,
PURAKKADI AMSOM DESOM, MEENANGADI POST,
SULTHAN BATHERI, PIN - 673591
2 JANCY RAJ
AGED 68 YEARS, W/O.LATE K.V. JOSEPH,
KANIYAMPADIKKAL, KRISHNAGIRI POST,
WAYANAD DISTRICT, PIN - 673591
3 TWINKLE RAJ
AGED 48 YEARS, W/O.REJI THOPPIL,
KANIYAMPADIKKAL,
KRISHNAGIRI POST,
WAYANAD DISTRICT, PIN - 673591
4 TWINTU RAJ
AGED 44 YEARS, W/O.REJI THOPPIL,
KANIYAMPADIKKAL, KRISHNAGIRI POST,
WAYANAD DISTRICT, PIN - 673591
5 BENCY RAJ
AGED 41 YEARS, D/O.LATE K.V. JOSEPH,
KANIYAMPADIKKAL, KRISHNAGIRI POST,
WAYANAD DISTRICT, PIN - 673591
O.P.(C) No. 582/2024
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6 SIBI RAJ
AGED 41 YEARS, S/O.LATE K.V. JOSEPH,
KANIYAMPADIKKAL, KRISHNAGIRI POST,
WAYANAD DISTRICT, PIN - 673591
BY ADVS.
RAVI SANKAR P K
R.GIREESH VARMA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 582/2024
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JUDGMENT
Ext.P7 order passed by the Munsiff Court, Sulthan Bathery is under
challenge in this original petition.
2. The 3rd judgment debtor in E.P.No.144/2021 is the petitioner. The
decree holder and the judgment debtors 4 to 8 are the respondents. The suit
was one filed by the plaintiff initially against the defendants 1 and 2 for
declaration of title and recovery of possession. During the pendency of the
suit, the 3rd defendant who is the present petitioner, was impleaded on the
ground that the property was transferred by the 1st defendant in his favour.
The suit was decreed ex-parte as early as in the year 2009. The plaintiff filed
execution petition. In the execution petition, the petitioner entered appearance
and challenged the maintainability of the execution petition. The petitioner
contented that the decree is not executable mainly for two reasons: (i) that a
portion of the decree schedule property absolutely belonged to him and even
though he was set ex-parte, the trial court did not consider his title over the
said portion, (ii) that the decree schedule property is not identifiable. The trial
court ordered delivery overruling those objections as per Ext.P7 order.
Challenging the said order, this origional petition has been filed.
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3. I have heard Sri.K.P. Sreekumar, the learned counsel appearing
for the petitioner, Sri.P.K.Ravi Sankar, the learned counsel appearing for the
1st respondent and Sri.R.Gireesh Varma, the learned counsel appearing for
respondents 2 to 6.
4. The learned counsel for the petitioner submitted that the
petitioner was under the bonafide impression that the defendants 1 and 2
would be prosecuting the case against him and therefore he did not prosecute
the case. The learned counsel further submitted that, even though the
defendants were set ex-parte, the trial court did not adjudicate his title over
the property properly and therefore, the question regarding title can be looked
into by the execution court. Secondly, the learned counsel submitted that the
decree schedule property is not identifiable.
5. So far as the first contention is concerned, it is settled that, the
execution court cannot go beyond the decree. The title of the plaintiff over the
decree schedule property was declared and recovery of possession was
ordered. The said decree has become final. The petitioner did not challenge
the said decree in appeal. Even though he was ex-parte, he did not file a
petition to set aside the ex-parte decree. The petitioner cannot reagitate the
question of title in execution court. So far as the contention regarding the
identity of the decree schedule property is concerned, when the Ameen visits
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the property for delivery, if he finds that the property is not identifiable, the
execution court is free to proceed further, in accordance with law, to get the
property identified.
I find no merit in the origional petition and accordingly, it is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
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APPENDIX OF OP(C) 582/2024
PETITIONER EXHIBITS
EXHIBIT - P1 TRUE COPY OF PLAINT IN O.S.NO.100 OF 1990 ON
THE FILE OF THE MUNSIFF'S COURT, KALPETTA
TRANSFERRED TO THE MUNSIFF'S COURT, SULTHAN
BATHERY AND RENUMBERED AS O.S.NO.3 OF 2001,
DATED 16.02.1990.
EXHIBIT - P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE ORIGINAL DEFENDANT IN O.S.NO.100 OF 1990
DATED 12.09.1990.
EXHIBIT - P3 TRUE COPY OF THE DOCUMENT NO.1353/2005,
DATED 29.03.2005 EXECUTED BY ADDL.
DEFENDANTS 4 TO 8 IN FAVOUR OF THE
PETITIONER.
EXHIBIT - P4 TRUE COPY OF THE JUDGMENT OF THE COURT OF
MUNSIFF MAGISTRATE, SULTHAN BATHERY IN
O.S.NO.3 OF 2001, DATED 20.01.2009.
EXHIBIT - P5 TRUE COPY OF THE EP NO.144/2021, DATED
11.10.2021 FILED BEFORE THE MUNSIFF'S COURT,
SULTHAN BATHERY.
EXHIBIT - P6 TRUE COPY OF THE COUNTER FILED BY THE
PETITIONER HEREIN, DATED 30.01.2023 IN EP
NO.144/2021.
EXHIBIT - P7 TRUE COPY OF THE ORDER DATED 20.02.2024 IN
E.P.NO.144/2021 IN O.S.NO.3/2001 OF THE
COURT OF THE MUNSIFF'S MAGISTRATE, SULTHAN
BATHERY.
