Kerala High Court
K.P. Mujeeb vs Ambreen Sadath on 15 November, 2024
O.P(C) No.2507 of 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
OP(C) NO. 2507 OF 2024
AGAINST THE ORDER DATED 02.04.2024 IN OS NO.1158 OF 2007
OF PRINCIPAL MUNSIFF COURT, ERNAKULAM
PETITIONER/PETITIONER/JUDGMENT DEBTOR/DEFENDANT:
K.P. MUJEEB, AGED 51 YEARS
S/O KP ALIPPA, AGED 51, ALFA HOUSE, MANJERI P.O,
MALAPURAM DISTRICT, NOW RESIDING AT 7B,
SILVER SQUARE APARTMENTS, LISIE – PULLEPPADI
ROAD, ERNAKULAM NORTH P.O, COCHIN, PIN - 682018
BY ADV E.NARAYANAN
RESPONDENTS/RESPONDENTS/DECREE HOLDERS:
1 AMBREEN SADATH,AGED 46 YEARS
D/O HARIS DAWOOD, AGE 46, 1D REGAL ROYAL,
NEAR JLN STADIUM, KALOOR, PIN - 642017
2 DR ANSIYA ESHACK, AGED 44 YEARS
D/O A.M. ESHACK, REGAL ROYAL, NEAR JLN STADIUM,
KALOOR, PIN - 682017
3 GEETHA KOSHY,AGED 68 YEARS
D/O CHACKO, 4D. REGAL ROYAL, NEAR JLN STADIUM,
KALOOR, PIN - 682017
4 M. GOPALAKRISHNAN NAIR,AGED 81 YEARS
S/O LATE AVOOR CIK MADHAVAN NAIR, 8C, REGAL ROYAL,
NEAR JLN STADIUM, KALOOR, PIN - 682017
5 REMYA CHACKO, AGED 39 YEARS
D/O A. K. BHAGYAM PILLAI, 30. REGAL ROYAL,
NEAR JLN STADIUM, KALOOR, PIN - 682017
6 KATHRY DOMINIC, AGED 81 YEARS
D/O MATHAI, 4C, REGAL ROYAL,
NEAR JLN STADIUM KALOOR, PIN - 682017
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7 FARIDHEEN RAHMAN ,AGED 45 YEARS
S/O LATE PC. ABDUL RAHMAN. 8B REGAL ROYAL,
NEAR JLN STADIUM, KALOOR, PIN - 682017
8 BIJU VISWANATH, AGED 47 YEARS
S/O P VISWANATHAN NAIR 1C REGAL ROYAL.
NEAR JLN STADIUM, KALOOR, PIN - 682017
9 KP JAYAKUMAR, AGED 47 YEARS
S/O PADMANABHAN NAIR, 3D, REGAL ROYAL.
NEAR JLN STADIUM, KALOOR, PIN - 682017
10 VIJI GOPALAKRISHNAN, AGED 54 YEARS
D/O GOPALAKRISHNAN, 7C. REGAL ROYAL,
NEAR JLN STADIUM, KALOOR, PIN - 682017
11 .SEBASTIAN JOHN, AGED 60 YEARS
S/O LATE PD JOHN, 7D. REGAL ROYAL.
NEAR JLN STADIUM KALOOR, PIN - 682017
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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VIJU ABRAHAM, J.
.................................................................
O.P(C) No.2507 of 2024
.................................................................
Dated this the 15th day of November, 2024
ORDER
The above original petition is filed seeking to set aside Ext.P5
order or in the alternative to declare that Ext.P2 execution petition is not
maintainable.
2. Petitioner was the defendant in a suit for injunction filed as
O.S.No.1158 of 2007 on the file of the Principal Munsiff Court, Ernakulam
and the suit was heard along with connected case and was decreed
declaring that the plaintiff has got an indefeasible right of way through
plaint A schedule pathway by easement by grant and a decree of
permanent prohibitory injunction restraining the defendants, his men and
agents or anybody claiming under him from obstructing plaint A schedule
pathway for ingress and egress to pass to plaint B schedule property and
from committing waste therein. Though appeal was preferred as
A.S.No.19 of 2016 before the Principal Sub Court, Ernakulam the same
was also dismissed confirming Ext.P1 judgment and decree. The
respondents herein claiming to be the assignees of some of the
apartments constructed by the plaintiff in the property involved in the suit
alleging that the petitioner herein has violated the decree, filed execution
petition as E.P.No.16 of 2024 before the Principal Munsiff Court,
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Ernakulam. The contention raised by the petitioner is that the respondents
are not decree holders within the meaning of the Code of Civil Procedure,
1908 and E.A.No.270 of 2024 was filed in the above execution petition to
consider the maintainability of the said execution petition. The execution
court after hearing both sides as per Ext.P5 order dated 02.04.2024 held
that the execution petition is maintainable since the petition is filed by the
assignees of the original decree holder as the property was later on
purchased by them. Learned counsel for the petitioner would contend that
since the decree holder has transferred the property to third parties he has
lost his right to file an execution petition and therefore the respondents
also cannot file an execution petition since the respondents are not decree
holders as defined in the Code of Civil Procedure. Learned counsel for the
petitioner would further submit that the finding in Ext.P5 order that the
decree passed in respect of the property was subsequently purchased by
the execution petitioners and therefore going by Order XXI Rule 16 of
Code of Civil Procedure the transferee can apply for execution of the
decree.
3. I have heard the rival contentions of both sides.
4. Even though there is an observation in Ext.P5 that the execution
petitioners have a right under Order XXI Rule 16 of Code of Civil
Procedure, which according to the petitioner has not been done, I am of
the opinion that the execution petition is maintainable for the reason that
the execution petitioners are the subsequent purchasers of apartments
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constructed by the plaintiff in the plaint schedule property, for which a right
of easement by grant was declared by the court in favour of the plaintiff.
This Court in Mathai v. Jordiy Poulose @ Jordi and others, 2011 (2)
KHC 591 has categorically held that the right of easement which runs with
the property would get transferred to the transferee. So whatever rights
which was obtained by the plaintiff as per the decree in O.S.No.1158 of
2007 including the right of easement which runs with the property would
get transferred to the purchaser who are the petitioners in the execution
petition.
In view of the reasons stated above, this Court is of the opinion
that the rejection of the petition filed by the petitioner to hear the
maintainability of the execution petition as a preliminary issue need not be
interfered with. Further it is to be seen that the order impugned herein is
dated 02.04.2024 and the same was challenged only on 5.11.2024.
Though the petitioner has given an explanation for the delay in filing the
original petition, I am of the view that the said explanation for the delay is
also not acceptable.
Accordingly, the original petition is dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
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APPENDIX OF OP(C) 2507/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 18-03-
2016 IN O. S. NO. 1158/2007 ON THE FILE
OF THE 2ND ADDITIONAL MUNSIFF COURT,
ERNAKULAM
Exhibit P2 TRUE COPY OF THE EP NO. 16/24 IN O.S.
NO. 1158/2007 ON THE FILE OF THE
PRINCIPAL MUNSIFF COURT, ERNAKULAM DATED
19.11.2024
Exhibit P3 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
11-04-2024 IN EP NO. 16/24 IN O. S. NO.
1158/2007 ON THE FILE OF THE PRINCIPAL
MUNSIFF COURT, ERNAKULAM
Exhibit P4 TRUE COPY OF THE AFFIDAVIT AND PETITION
DATED 20-03-24 IN EA NO. 207/24 IN EP
NO. 16/24 IN O. S. NO. 1158/2007 ON THE
FILE OF THE PRINCIPAL MUNSIFF COURT,
ERNAKULAM
Exhibit P5 TRUE COPY OF THE ORDER DATED 02-04-2024
IN EA NO. 207/24 IN EP NO. 16/24 IN O.
S. NO. 1158/2007 ON THE FILE OF THE
PRINCIPAL MUNSIFF COURT, ERNAKULAM
Exhibit P6 TRUE COPY OF THE EA NO.264/24 IN EP NO.
16/24 IN O.S.NO.1158/2007 DT.23.04.24 ON
THE FILE OF THE PRINCIPAL MUNSIFF COURT,
ERNAKULAM
Exhibit P7 TRUE COPY OF THE ORDER DATED 12-04-24 IN
EA NO.264/24 IN EP NO.16/24 IN O.S.
NO.1158/2007 ON THE FILE OF THE
PRINCIPAL MUNSIFF COURT, ERNAKULAM
Exhibit P8 TRUE COPY OF THE SCREENSHOT OF THE
PROCEEDINGS DATED 20-07-24 IN EP NO.
16/24 IN O.S. N.O.1158/2007 OF PRINCIPAL
MUNSIFF COURT, ERNAKULAM
Exhibit P9 TRUE COPY OF THE APPLICATION DATED 20-
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01-24 EA NO.56/24 IN EP NO. 16/24 IN O.
S. NO. 1158/2007 ON THE FILE OF THE
PRINCIPAL MUNSIFF COURT, ERNAKULAM
Exhibit P10 TRUE COPY OF THE REPORT DATED 12-03-24
IN IN EA NO.56/24 IN EP NO. 16/24 IN O.
S. NO. 1158/2007 ON THE FILE OF THE
PRINCIPAL MUNSIFF COURT, ERNAKULAM
