IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 658 of 2008()
1. B.VIJAYALEKSHMI, PISHARATHUPARAMBIL,
... Petitioner
Vs
1. VIJAYALEKSHMI AMMA, PISHARATHUPARAMBIL
... Respondent
2. SUNIL KUMAR, PISHARATHUPARAMBIL,
3. SURJITH, PISHARATHUPARAMBIL, THURAVOOR
4. N.GANGADHARAN NAIR, PISHARATHUPARAMBIL,
5. N.PURUSHOTHAMAN NAIR, PISHARATHUPARAMBIL
6. KERALA STATE, REPRESENTED BY SPECIAL
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.No.658 of 2008 - C
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Dated this the 24th day of August, 2009
O R D E R
The revision is directed against the order dated 28.7.2008
in E.P.No.61 of 2005 in L.A.R.No.176 of 1994 on the file of the
Sub Court, Cherthala. petitioner is the second respondent in the
above execution petition. In a land acquisition reference
proceeded over the property of the predecessor of respondents 1
to 5 and also of the petitioner, enhanced compensation was
awarded by the court. Against the decision of that court there
was an appeal and during the pendency of the appeal, the
predecessor, the father of the petitioner and the above
respondents, passed away. Petitioner and the respondents were
brought in by substitution as the legal heirs. The appeal was
dismissed confirming the decree passed by the land acquisition
court. Pursuant to which the respondents 1 to 5 proceeded for
execution of the decree by filing the execution petition in which
the petitioner was shown as the second respondent. The second
respondent had no right over the compensation awarded under
C.R.P.No.658 of 2008 – C
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the decree was the case of the petitioners for the reason under a
gift executed by the father, she had no more right over the rest
of his properties. The gift is an onerous one and it was accepted
by the second respondent donee and as such though she had
been impleaded as one of the legal heirs with the petitioners, she
cannot claim any right over the compensation awarded under the
decree was their case. The execution court found merit in the
case so canvassed by the petitioner. It was held under the
impugned order that the second respondent has no right over the
compensation awarded under the decree in view of the gift
executed in her favour by the father. Propriety and correctness
of that order is challenged in the revision.
2. I heard the learned counsel on both sides.
3. The question emerging for consideration is whether
the execution court has competency to determine the disputed
question canvassed in the case by the parties. Obviously not, as
substantive rights of the parties which was not subject matter of
the decree passed was presented for adjudication before the
court. If at all any such dispute is raised that question can be
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considered only by a competent forum and not by the execution
court, affording opportunity to both sides to establish their
respective case. The execution court cannot go behind the
decree and it has to execute the decree as it is. Where the
decree provided for a right to second respondent also as a legal
heir, unless there is any order from a competent forum
prohibiting the grant of benefit under the decree to the second
respondent, for the reason of the acceptance of the gift executed
in her favour by the father, the execution court is not competent
to interpret or enter a decision regarding the conditions imposed
in the gift deed and hold that the second respondent is not
entitled to the compensation under the decree. The impugned
order is set aside and the court below is directed to continue the
proceedings in accordance with law.
Revision is disposed of accordingly.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-