High Court Kerala High Court

George vs Radha on 27 February, 2007

Kerala High Court
George vs Radha on 27 February, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 456 of 2006()


1. GEORGE, S/O. GEEVARGHESE,
                      ...  Petitioner

                        Vs



1. RADHA, W/O. KRISHNANKUTTY,
                       ...       Respondent

2. KRISHNAN KUTTY, S/O. NARAYANAN,

3. DAVID. S/O. PAUL, RESIDING AT

4. MATHEW, S/O. PAUL,

                For Petitioner  :SRI.MANOJ P.KUNJACHAN

                For Respondent  :SRI.P.N.RAMAKRISHNAN NAIR

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :27/02/2007

 O R D E R
                          K.P.BALACHANDRAN, J.

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                            C.R.P.NO.456 OF 2006

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               Dated this the 27th day of February 2007


                                        ORDER

The petitioner is the judgment debtor in O.S.530/97 on the

file of the Munsiff’s Court, Moovattupuzha. Respondents 1 and 2

were the plaintiffs in the said suit who obtained a decree against

the petitioner for recovery of possession of 1.4 cents alleged to

have been trespassed by the petitioner. The contention that is

advanced before me by the learned counsel for the petitioner is

that admittedly the total extent of property which the first

respondent/decree holder was having is 7.875 cents only; that he

has sold the entire 7.875 cents to one George Sakaria under sale

deed no.5/04 dated 29.12.2003 of Sub Registry Office,

Kothamangalam and that therefore she cannot seek for recovery

of any portion of property from the possession of the petitioner.

The counsel for the petitioner has passed on a copy of the said

sale deed 5/04 for perusal. It is seen from the recital therefrom

that the entire property of 7.875 cents is transferred by the first

respondent to George Sakaria for a sale consideration of

Rs.24,000/- undertaking that there is no encumbrance at all over

C.R.P.NO.456 OF 2006

2

the said property. The fact that 1.4 cents from out of 7.875 cents

belonging to her is in the possession of the petitioner had not

been disclosed in the document. Therefore it is contended for

the petitioner that whatever the petitioner was having is

transferred to George Sakaria who in turn has sold it to another

3rd party and that therefore no right is vested for the decree

holder to proceed with execution. This revision is filed as the

execution court has repelled the above contentions and ordered

delivery.

2. It is contended by the learned counsel for respondents 1

and 2 on the strength of the decision in Banke Behara Lal v.

Raghubar Dayal [AIR 1930 Alahabad 380] and the decision

in Cherukutty v. Velappu [1987 (1) KLT 565] that

impleadment of the assignee is not mandatory or necessary and

that the assignor can proceed with execution if the assignee has

got confidence in the assignor. It is settled position that even

after transfer of the property in dispute the transferor can

prosecute the suit or appeal and that for the purpose the

transferee need not invariably be made a party. All the same,

the contention that is advanced before me by the counsel for the

C.R.P.NO.456 OF 2006

3

petitioner is that the decree holder might be able to prosecute

the litigation on behalf of the transferee but in the instant case

as there is no reference with respect to the existence of the

decree in the sale deed and no responsibility is taken up by the

decree holder to get delivery of 1.4 cents from the petitioner and

to surrender that also to the transferee, the decision cited has no

application to the facts of this case and that the decree in favour

of the first respondent has become inexecutable at present. I am

not prepared to agree to the contentions raised but all the same

it is for the execution court to see that undue benefit is not taken

by the decree holder who has transferred the property to

someone else after the decree.

In the result, while dismissing the petition, I order that the

execution shall proceed after impleading also the transferee or

the transferees as the case may be and only thereafter delivery

shall be effected. This revision is disposed of with the above

directions.

K.P.BALACHANDRAN, JUDGE

jes