IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex.SA.No. 2 of 2010()
1. NAZEEMA, AGED 40, W/O.ABDUL SALAM
... Petitioner
Vs
1. M.E.SREEDHARAN, S/O.EACHARAN
... Respondent
2. C.A.ABDUL SALAM, CHAMAKKALYIL HOUSE
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.BOBBYMATHEW KOOTHATTUKULAM
The Hon'ble MR. Justice P.BHAVADASAN
Dated :27/05/2010
O R D E R
P.BHAVADASAN, J.
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Ex.SA No.2 of 2010
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Dated 27th May 2010
Judgment
The first respondent herein obtained a decree
against the second respondent.
2. The suit was one for money. The decree
holder took out execution of the decree as per EP
No.98/05 in OS No.556 of 2001. It appears that the decree
holder sought attachment of the property. The attachment
was ordered. Then the petitioner herein came forward with
a claim petition under Order XXI Rule 58 CPC, pointing out
that the property belonged exclusively to her and not liable
to attachment. Even though the name of the judgment
debtor was shown in the document, he had no right
whatsoever over the property and he was included in the
document only for a name sake.
3. It appears that no evidence whatsoever was
adduced by the petitioner before the Trial Court and the
Ex.SA No.2/10 2
only document produced was Ext.B1 to consider whether
the claim made by the petitioner is correct or not. Going by
the document, the Trial Court came to the conclusion that
the judgment debtor was a co-owner and there was no
evidence to show that it was otherwise. Accordingly, the
claim petition was dismissed.
4. The appellant carried the matter in appeal as
AS No.155/09 before the Sub Court, Perumbavoor. The
lower Appellate Court, on an independent consideration of
the evidence, came to the same conclusion as that of the
Trial Court and dismissed the appeal. The said order is
assailed in this Appeal.
5. The learned counsel for the appellant raised
two contentions before this Court. They are (1) Since the
claim petition is under Order XXI Rule 58 CPC, issues had
to be raised (2) the appellant was not given an opportunity
to adduce her evidence.
6. On going through the orders of the lower
Court, it can be seen that both the contentions are without
Ex.SA No.2/10 3
any basis whatsoever. The lower Appellate Court has
extracted as to what has transpired on the date on which it
was posted, which reads as follows :
“No representation. Kept aside. Petition represented. No
oral evidence for the petitioner. Heard. For orders to
3.6.2006.”
7. If the appellant has a case that the said
narration in the order of the Trial Court is contrary to facts,
her remedy lies in filing a review petition. It also needs to
be noticed that the order is extracted in the order of the
lower Appellate Court on 27.05.2006. Thereafter, the case
was posted for orders to 03.06.2006. If the appellant had a
case that she was precluded from adducing evidence,
nothing prevented her from filing a petition seeking to re-
open evidence. No such steps appear to have been taken
by her. There is nothing to show that the appellant had any
misapprehension regarding the matter. It needs to be
noticed that the suit is of the year 2001 and a decree has
been obtained. As rightly noticed by the courts below, the
Ex.SA No.2/10 4
attempt seems to be to delay the execution. If there was
any bona fide in the claim made by the appellant, she
would have taken necessary steps to establish her claim.
Having not done so, it cannot be said that she was
precluded from adducing evidence. In the result, no
grounds are made out to interfere with the Judgment and
decree of the court below. This appeal is devoid of any
merits and it is accordingly dismissed.
P.BHAVADASAN, JUDGE
sta
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