IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 598 of 2010()
1. BIJU JACOB, P.T.C.TOWERS,
... Petitioner
Vs
1. THE KERALA WATER AUTHORITY,
... Respondent
2. THE SUPERINTENDING ENGINEER,
For Petitioner :SRI.RAJIV ABRAHAM GEORGE
For Respondent :SMT.AMBIKA DEVI, SC, KWA
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/11/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No.598 of 2010
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Dated this 26th day of November, 2010
ORDER
This revision is in challenge of order dated 22-09-2010 in
E.A.No.77 of 2010 in E.P.No.41 of 2008 of the court of learned
Additional District Judge-I, Alleppey. There was an agreement
between respondent No.2 on behalf of respondent No.1 and
deceased decree holder on 27-11-1990 regarding augmentation
work for the water supply scheme at Chengannur and when
dispute arose the matter was referred for arbitration. Arbitrator
was appointed on 28-06-2006 who passed award on 31-03-2008.
Decree holder filed E.P.No.41 of 2008 on 06-09-2008 in the court
of learned Additional District Judge, Alleppey to execute the
award and recover the amount, according to the petitioner after
the time to apply to set aside the award expired. In the
meantime, decree holder died and petitioner herein, claiming to
be entitled to the amount as per the award as per a Will
(allegedly) executed by deceased decree holder sought her
impleadment in the execution petition and disbursement of the
amount. Notarised photocopy of the Will was produced.
Respondents/judgment debtors objected contending that what is
C.R.P.No.598 of 2010
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produced is only the photocopy and not the original Will and
disputing execution of the Will. Learned Additional District Judge
has dismissed E.A.No.77 of 2010 taking note of the objection
raised by respondents as to execution of the Will and observing
that execution of the Will is not proved as required under Sec.68
of the Indian Evidence Act (for short, “the Act”) by producing the
original Will. Consequently E.P.No.41 of 2008 was dismissed.
The order on E.P.No.41 of 2008 is under challenge in this
revision. Learned counsel for petitioner submitted that no order
was passed on E.A.No.77 of 2010 to the knowledge of petitioner.
I ascertained from the court below whether such an order was
passed. Learned Additional District Judge has sent by fax a copy
of the order dated September 22, 2010 on E.A.No.77 of 2010
which is now appended to this paper book. I do not think it
necessary to direct petitioner to produce a copy of the order
since copy of the order sent by fax could be taken into account. I
have heard learned counsel for respondents/judgment debtors as
well. Learned counsel submits that respondents had preferred
Arbitration Appeal No.3 of 2010 against order in R.P.No.258 of
2010 in arbitration O.P.No.16 of 2009 which this court dismissed
vide judgment dated March 16, 2010 (Annexure-I). It is also
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submitted by learned counsel that information obtained from the
affidavit (Annexures 2 and 3) is that annexure-I, judgment is
challenged before the Supreme Court.
2. Now, I am only concerned with the dismissal of
E.A.No.77 of 2010 and E.P.No.41 of 2008. No doubt, any party to
the proceeding is entitled to challenge execution of the Will when
it is put up against him as held by this court in Krishnan Asari
Velayudhan Asari Vs. Parameswaran Pillai Madhavan Pillai
(AIR 1989 Kerala 163). Hence, on the face of denial made by
respondents petitioner was obliged to prove due execution of the
Will as provided under law if he wished to claim right under the
said Will. Learned counsel for petitioner submits that he is
prepared to prove due execution of the Will or, in the alternative,
implead all legal heirs of deceased decree holder so that there
could be an end of the dispute. That matter is left to the option of
the petitioner. It is open to him to proceed as provided under
law.
3. In the light of what I have stated above and the
submission of learned counsel for petitioner, it is only just and
proper that order dated September 22, 2010 in E.A.No.77 of
2010 and the consequent dismissal of E.P.No.41 of 2008 are set
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aside.
Resultantly this petition is allowed and order dated
September 22, 2010 on E.A.No.77 of 2010 and E.P.No.41 of 2008
of the court of learned Additional District Judge, Alleppey in
A.P.No.4 of 2006 are set aside and E.A.No.77 of 2010 and
E.P.No.41 of 2008 are remitted to that court for fresh decision.
Petitioner shall be given opportunity to prove due execution of
the Will if he wishes to proceed with his claim under the Will, if
necessary after giving notice to all the legal heirs who are
otherwise entitled to inherit the asset of deceased decree holder
or, as alternatively submitted by the learned counsel and if law
provides so, to implead all legal heirs of deceased decree holder
in E.P.No.41 of 2008 and claim relief as provided under law.
Parties shall appear in the court below on 21-12-2010.
(THOMAS P JOSEPH, JUDGE)
Sbna/-