Kerala High Court
Chilambu Tharakan vs Kunhimalu Ammal on 17 October, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
EX.SA NO. 5 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 13/12/2019 IN
AS NO.10 OF 1999 OF SUB COURT, OTTAPPALAM ARISING OUT OF
THE JUDGMENT AND DECREE DATED 22/12/1998 IN EA No.208/1997
AND EA No.57/1998 IN EP No.70/1992 IN OS NO.123 OF 1969 OF
MUNSIFF COURT, OTTAPPALAM
APPELLANTS/APPELLANTS/OBSTRUCTERS:
1 VIJAYALAKSHMI
AGED 60 YEARS
W/O.PARAKKOTTIL HARIDAS,
VELLINEZHI AMSOM,
KUTTANASSERI DESOM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
2 HAREESH
AGED 35 YEARS
S/O.PARAKKOTTIL HOUSE,
VELLINEZHI AMSOM,
KUTTANASSERI DESOM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
3 PRIYANKA
AGED 30 YEARS
D/O.PARAKKOTTIL HOUSE,
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2
VELLINEZHI AMSOM,
KUTTANASSERI DESOM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADVS.
P.JAYARAM
SRI.SARATH CHANDRAN K.B.
RESPONDENTS/RESPONDENTS/PETITIONER & OBSTRUCTER:
1 ASSANAR
PARAMBIL PEEDIKA,
KARIMPUZHA AMSOM,
ATTASSERI DESOM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
2 APPUKKUTTY
AGED 65 YEARS
S/O.LATE CHILAMPA THARAKAN,
CHOKKATTU AYARCHOLAYIL,
THIRUNARAYANAPURAM AMSOM,
KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
3 UNNIKRISHNAN
AGED 66 YEARS
S/O.LATE CHILAMPA THARAKAN,
CHOKKATTU AYARCHOLAYIL,
THIRUNARAYANAPURAM AMSOM,
KURAVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
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3
4 SANKARANARAYANAN
AGED 55 YEARS
S/O.LATE CHILAMPA THARAKAN,
CHOKKATU AYARCHOLAYIL,
THIRUNARAYANAPURAM,
AMSOM, KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
5 RAMACHANDRAN
AGED 50 YEARS
S/O.LATE CHILAMPA THARAKAN,
CHOKKATU AYARCHOLAYIL,
THIRUNARAYANAPURAM,
AMSOM, KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
6 BALAKRISHNAN
AGED 62 YEARS
S/O.LATE KUNHUMALU AMMAL,
CHILAMPATH KEEZHETHODIYIL,
THIRUNARAYANAPURAM AMSOM,
KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
7 SIVARAMAN
AGED 60 YEARS
S/O.LATE KUNHUMALU AMMAL,
CHOKKATU AYARCHOLAYIL,
THIRUNARAYANAPURAM,
AMSOM, KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
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8 SUBRAMANYAN
AGED 58 YEARS
S/O.LATE KUNHUMALU AMMAL,
CHOKKATU AYARCHOLAYIL,
THIRUNARAYANAPURAM,
AMSOM, KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
9 RAJAMANI
AGED 55 YEARS
S/O.LATE KUNHUMALU AMMAL,
CHOKKATU AYARCHOLAYIL,
THIRUNARAYANAPURAM,
AMSOM, KURUVATTUR DESOM,
P.O.KUTTANASSERI,
OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 514.
BY ADV SHRI.JAYARAJ.M
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 17.10.2024, ALONG WITH CRP.710/1994, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRP NO. 710 OF 1994
AGAINST THE ORDER/JUDGMENT DATED 14.02.1994 IN OS
NO.123 OF 1969 OF MUNSIFF COURT, OTTAPPALAM
REVISION PETITIONER (PETITIONER/1st DEFENDANT:
CHILAMBU THARAKAN,
S/O. APPU THARAKAN,
RESIDING AT THIRUNARAYANAPURAM AMSOM,
KURUVATTOOR DESOM,
OTTPALAM TALUK
RESPONDENT(RESPONDENT/PLAINTIFFF):
KUNHIMALU AMMAL,
W/O. CHILAMBATH KEEZHETHODIYIL,
KUTTA THARAKAN,
RESIDING AT THIRUNARAYANAPURAM AMSOM,
KURUVATTOOR DESOM,
OTTAPPALAM TALUK
THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 17.10.2024, ALONG WITH Ex.SA.5/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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6
JUDGMENT
1. This Execution Second Appeal arises from the order in
E.A. No.208/1997 filed by the decree holder under Order
XXI Rule 97 CPC in E.P.No.70/1992 in O.S.
No.123/1969 to remove the obstruction created by the
respondents 1 and 2 therein, namely, Asainar and
Haridas. Haridas alone contested the E.A. During the
pendency of E.A., Haridas died and his wife and two
children were impleaded in the E.A as the respondents 3
to 5. The wife of Haridas filed E.A. No.57/1998 to appoint
an advocate commissioner to identify the decree
schedule property. The contentions raised by the
respondents 3 to 5 is that the property in their
possession was derived by Haridas as per Ext.B6 Sale
Deed of the year 1995 executed by one Devaki Amma;
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that Devaki Amma derived the said property as per
Exts.B3, B4 and B5 documents of the year 1973 and
1974 executed by the 1st defendant in the suit - Chilambu
Tharakan ; that it is a part of Ext.B2 document of the year
1948; that the property covered by Ext.B2 is the self
acquired property of the 1st defendant Chilambu
Tharakan which is not included in the plaint schedule
property in the suit; that the claim is with regard to A
schedule item No.3 property in the decree schedule
having an extent of 1 Acre 61 cents of land in Survey
No.2/1; that the property covered by the decree does not
have any building; and that the difference in Survey
Number, namely Survey No.1/1 and 1/9 and existence of
two buildings in the property sought to be delivered
would probabalise their case that the said property is not
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included in the preliminary decree or final decree
proceedings.
2. The Trial Court as well as the First Appellate Court
considered the claim raised by the respondents 3 to 5
and rejected the same finding that the very same claim
was raised by the 1st defendant Chilambu Tharakan
during the Trial stage as well as in the execution stage
contending that the property covered by Ext.B2 is not
included in the decree schedule property. The Trial
Court as well as the First Appellate Court relied on the
judgment of this Court in CRP No.710/1994 in which the
claim of Chilambu Tharakan in this regard was turned
down. Since the Trial Court as well as the First Appellate
Court relied on the judgment in CRP No.710/1994, the
aforesaid respondents 3 to 5 have filed Review Petition
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with Application to condone delay of 8396 in filing the
Review. As they are not parties to the said CRP, the
Review Petition and the Application to condone Delay
are not numbered and Application seeking leave to
review the judgment dated 18/02/1997 in CRP
No.710/1994 is numbered as I.A.No1/2021.
3. I heard the learned counsel for the appellant
Sri.P.Jayaram as well as the learned counsel for the
respondents 6, 8 and 9 Sri.M.Jayaraj who are some of
the legal heirs of the decree holder.
4. The learned counsel for the appellant submitted that the
Trial Court judgment in O.S. No. 123/1969 would show
that Ext.B1therein ( Ext.B2 herein) was produced only to
prove the address of Andiyamma who is the mother of
the plaintiff and the defendant. Admittedly, the property in
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Ext.B2 herein is not a part of the decree schedule
property. If that be the case, on the strength of the
decree, the property covered by Ext.B2, a part of which
is purchased by Haridas could not be proceeded by the
decree holder.
5. On the other hand, the learned counsel for the contesting
respondents submitted that this issue is already covered
by the judgments in the Trial stage as well as in the
appellate stage and also in the execution stage and the
1st defendant had filed CRP No.710/1994 in which the
very same claim of the 1st defendant was specifically
denied by this Court.
6. On considering the rival contentions raised by both the
counsels, I find that the claim of the 1 st defendant against
delivery was considered in E.A. No.309/1992 by the
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Execution Court in which prayer was to set aside the
delivery of the properties effected by Amin. In the said
E.A. also the contention of the 1st defendant was that the
property covered by Ext.B2 herein which is the self
acquired property of the 1st defendant is sought to be
executed on the strength of the decree. The Execution
Court considered the same and dismissed the said E.A,
against which the defendant filed CRP No.710/1994. In
the judgment dated 18/02/1997 in CRP No.710/1994,
this Court has specifically considered the claim that the
property covered by Ext.B2 herein is delivered by Amin
to the plaintiff.
7. The very same contentions raised by the appellants
herein about the difference in the Survey Number and
the existence of house were considered by this Court in
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the said judgment at the instance of the 1 st defendant
and rejected. This Court specifically found that the 1 st
defendant has no case that extent of property delivered
is more than what has been allotted to the plaintiff and
that what are delivered to the plaintiff are only the
properties that has been allotted to her in the final
decree.
8. The appellants are claiming title from the 1st defendant.
Since the very same contentions raised by the 1 st
defendant was turned down by this Court in CRP
No.710/1994, the appellants cannot re-agitate the same
in a Petition to remove obstruction filed by the decree
holder. Hence, I do not find any ground to interfere with
the order passed by the Execution Court, which is
confirmed by the First Appellate court.
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9. The appellants have filed I.A. No. 1/2021 seeking leave
to file review against the judgment in CRP No.710/1994
on the ground that the said judgment was rendered on
the basis of mistaken facts. It is clear from the judgment
in CRP No.710/1994, the learned Judge has relied on
the findings in the judgments of the Trial court, First
Appellate Court and the Second Appellate Court to
dispose of the Civil Revision Petition finding that very
same contentions were overruled. The learned Judge
has considered the matter elaborately and thereafter
disposed the CRP by judgment dated 18/02/1997. The
appellants have not made out any ground to review the
said judgment. Accordingly the said I.A. No. 1/2021 is
also liable to be dismissed.
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10. Accordingly, Ex.S.A. No.5/2021 and I.A. No. 1/2021
in the unnumbered Review Petition in CRP No.710/1994
are dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
