IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 861 of 2007()
1. S.MOHANDAS, ARUN NIVAS, KUMILY KARA,
... Petitioner
2. K.R.OMANA, W/O.S.MOHANDAS, ARUN NIVAS,
Vs
1. K.J.ANTONY, S/O.JOSEPH,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :28/09/2007
O R D E R
M.N.Krishnan, J.
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C.R.P.No.861 of 2007
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Dated this the 29th day of September, 2007.
ORDER
This revision petition is preferred against the order of the
Subordinate Judge, Kattappana whereby, the court directed
delivery of possession of the property to the petitioner therein.
Aggrieved by that decision, the revision petitioners have come up
before this Court.
2. Brief facts necessary for the disposal of the revision are
that there was a money decree against the defendant and in
execution of the money decree, the property belonging to the
second revision petitioner was sold in auction, confirmed, sale
certificate issued and on the strength of the sale certificate
application for delivery had been filed and it is pending before the
concerned court. Learned counsel for the revision petitioners
very strongly contends before me that the petition is not
maintainable as E.P. because delivery of the property is to be
CRP 861/07 -: 2 :-
applied under Order 21 Rule 95 of C.P.C. and since it is not done,
the Execution Petition filed is not maintainable in law and further,
if it is an execution application, it has to be filed only in the E.P.
which was pending before the Subordinate Judge, Thodupuzha
and therefore the court at Kattappana has no jurisdiction at all to
entertain the matter.
3. Learned counsel had already relied on the decision of the
Apex Court reported in Ganpat Singh v. Kailash Shankar –
A.I.R. 1987 S.C. 1443 where the Apex Court was considering
regarding the question of limitation and the applicability of Order
21 Rule 95 of C.P.C. The Apex Court held that Order 21 Rule 95
of C.P.C. is in the form of an application and not in the form of
original Execution Petition. The learned counsel also referred to
the decision reported in Haneefa v. United Finance
Corporation – 2006(1) K.L.T. 416. It has to be stated that the
whole matter here had arisen on account of the factum of the
establishment of Subordinate Court at Kattappana. There was
only a court at Thodupuzha and later a court was established at
Kattappana. The question whether the matter has to go back to
the court at Thodupuzha or Kattappana was a subject matter of
CRP 861/07 -: 3 :-
discussion and the finding in R.P.No.342 of 2006 in
C.R.P.No.1099 of 2000. On consideration of the materials, this
Court has held thus:
“It is held that the Subordinate Judge’s Court,
Kattappana is having jurisdiction to proceed with the
matter and that the petition is not to be sent to the
Sub Court, Thodupuzha which passed the decree.”
4. It is also clearly settled that when a new court is
established, the transferor court or the transferee court can
exercise the jurisdiction depending upon the facts and
circumstances of each case. Here it is on account of the
formation of a new court at Kattappana that a petition for
delivery had been moved in that court. One need not have to be
hypertechnical on this point because what is sought to be
achieved is only to get the decree of the court implemented by
methods known to law. The decision relied on by the learned
counsel for the revision petitioner only held about the nature of
the petition when a question of limitation was raised for
consideration. Here, no such question arises and not only that
this Court sitting in revision, has held that the court at
CRP 861/07 -: 4 :-
Kattappana can proceed with the matter. There is no further
revision or Special Leave Petition before the Apex Court and
therefore, the jurisdictional aspect of the Court at Kattappana has
become final. The court need not defeat justice by simply
permitting the party to have technical arguments of this nature.
5. Therefore, I do not find any ground to interfere with the
decision rendered by the court below and therefore the Civil
Revision Petition is dismissed.
M.N.Krishnan,
Judge.
ess 28/9