IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 25 of 2009()
1. ANSARI, KANKALIL VEEDU
... Petitioner
Vs
1. SULEKHA BEEVI, W/O.KOYAKUTTY
... Respondent
2. MUHAMMED SHEREEF, S/O.KOYAKUTTY,
3. RAMLATH, D/O.KOYAKUTTY, DO.DO.
4. IRSHADA, D/O.KOYAKUTTY, DO.DO.
5. RASHEEDA, D/O.KOYAKUTTY, DO.DO.
For Petitioner :SRI.R.RAMADAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :20/01/2009
O R D E R
K.P. Balachandran, J.
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C.R.P.No.25 of 2009
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ORDER
Revision petitioner is the petitioner in E.A.
No.176/07 in E.P.No.127/93 in O.S.No.161/83 on the
file of the Munsiff’s Court, Kayamkulam. The said
application was filed by the petitioner praying
that the proceedings in E.A.No.27/94 be dropped.
The said EA was dismissed. Hence this revision
petition.
2. E.A.No.27/94 was an application filed by the
tenant of the building in the scheduled property in
O.S.No.161/83 at the time of eviction for re-
delivery of the building, as, instead of ordering
symbolic delivery, actual physical possession of
the building in the scheduled property, which was
occupied by him, was delivered over to the decree
holder. According to Koyakutty, who filed E.A.No.
27/94, he was a building tenant under the decree
holder in O.S.No.161/83 on the file of the
Munsiff’s Court, Kayamkulam even before execution
CRP 25/09 2
of the mortgage in favour of the judgment debtor in
the case; that therefore, only symbolic delivery
could be effected and that inasmuch as actual
physical possession of the scheduled building was
also delivered over, the building, which was in his
occupation as a tenant, has to be re-delivered to
him. The execution court allowed E.A.No.27/94 and
ordered re-delivery. That was confirmed in appeal
also by the Additional District Court, Mavelikara
in A.S.No.165/95.
3. It is submitted that petitioner and one Suni
Rasheed got assigned the rights of the decree
holder and got themselves impleaded as additional
appellants in A.S.No.165/95. However, while A.S.No.
165/95 was pending, Koyakutty died and his legal
representatives were impleaded as additional
respondents 2 to 6 in that appeal. The appellate
court, which dismissed the appeal confirming the
order on E.A.No.27/94, held that the legal
representatives of deceased Koyakutty are entitled
CRP 25/09 3
to move the executing court for re-delivery of the
property. Accordingly, in E.A.No.27/94, additional
petitioners 2 to 5 were impleaded and they were the
son and daughters of deceased Koyakutty, as, in the
meanwhile, the widow of Koyakutty also passed away.
4. It is the case of the petitioner that
himself and Suni Rasheed, who got assignment of the
decree schedule building during the pendency of
A.S.No.165/95 before the District Court,
Mavelikara, got themselves impleaded as respondents
12 and 13 in E.A.No.27/94 and raised contentions
that three of the legal heirs of deceased Koyakutty
had assigned their inherited tenancy right to him
by virtue of Release Deed No.2083/07 and that
therefore, he has become a statutory joint tenant
along with the petitioners in E.A.No.27/94 and
hence, the order for re-delivery in E.A.No.27/94
has become inexecutable and also filed E.A.No.
176/07 seeking for an order dropping the
proceedings in E.A.No.27/94.
CRP 25/09 4
5. The execution court, which considered the
application filed by the petitioner, observed that
the three persons, from whom the petitioner got
assignment, posing themselves as the legal heirs of
deceased tenant Koyakutty, are not the persons
impleaded as the legal heirs of deceased Koyakutty
in A.S.No.165/95 and in E.A.No.27/94; that there
had been no adjudication of the rights of the
executants of the said documents in favour of the
petitioner; that even if the executants of the
documents are also the legal heirs of deceased
Koyakutty, it cannot be said that the order in E.A.
No.27/94 has become inexecutable; that the effect
of the alleged assignment, if at all, is only to
enable the decree holders not to implead the
executants of the said assignment deed and that the
assignment, however, in no way affects the right to
get re-delivery ordered vide E.A.No.27/94 in favour
of additional petitioners in E.A.No.27/94, who are
impleaded as the legal heirs of deceased Koyakutty
CRP 25/09 5
and consequently, dismissed E.A.No.176/07. It is
the said order passed by the execution court on
E.A.No.176/07, refusing to drop the proceedings in
E.A.No.27/94, that is assailed before me in this
revision.
6. It is vehemently contended before me by the
learned counsel for the petitioner that when right
of at least a few of the legal heirs of the
original deceased tenant is got executed in favour
of the petitioner, he becomes a co-owner along with
the other legal heirs of deceased tenant Koyakutty
and therefore, the order in E.A.No.27/94 has become
inexecutable. I am not prepared to accept the
contention and repel the same. When re-delivery was
ordered in favour of the original tenant and a few
of his legal heirs, who continued in occupation of
the scheduled building, prosecute the petition for
re-delivery, the decree holder cannot overreach the
order of re-delivery by getting assignment from
some other alleged legal heirs, even if they are
CRP 25/09 6
the real legal heirs, but are not in occupation of
the building and pray for petition for re-delivery
being dropped. Such of the legal heirs of the
original tenant, who are in actual physical
occupation of the building, in continuation of the
occupation of the original deceased tenant
Koyakutty, are entitled to all the rights which
deceased Koyakutty had to the exclusion of other
legal heirs, who are not in occupation of the
tenanted premises. The order of re-delivery in E.A.
No.27/94 is, therefore, executable and the court
below has rightly dismissed E.A.No.176/07, praying
for an order dropping the proceedings in E.A.No.
27/94.
This revision petition is devoid of any merit
and is dismissed.
20th January, 2009 (K.P.Balachandran, Judge)
tkv