IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 456 of 2006()
1. GEORGE, S/O. GEEVARGHESE,
... Petitioner
Vs
1. RADHA, W/O. KRISHNANKUTTY,
... Respondent
2. KRISHNAN KUTTY, S/O. NARAYANAN,
3. DAVID. S/O. PAUL, RESIDING AT
4. MATHEW, S/O. PAUL,
For Petitioner :SRI.MANOJ P.KUNJACHAN
For Respondent :SRI.P.N.RAMAKRISHNAN NAIR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :27/02/2007
O R D E R
K.P.BALACHANDRAN, J.
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C.R.P.NO.456 OF 2006
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Dated this the 27th day of February 2007
ORDER
The petitioner is the judgment debtor in O.S.530/97 on the
file of the Munsiff’s Court, Moovattupuzha. Respondents 1 and 2
were the plaintiffs in the said suit who obtained a decree against
the petitioner for recovery of possession of 1.4 cents alleged to
have been trespassed by the petitioner. The contention that is
advanced before me by the learned counsel for the petitioner is
that admittedly the total extent of property which the first
respondent/decree holder was having is 7.875 cents only; that he
has sold the entire 7.875 cents to one George Sakaria under sale
deed no.5/04 dated 29.12.2003 of Sub Registry Office,
Kothamangalam and that therefore she cannot seek for recovery
of any portion of property from the possession of the petitioner.
The counsel for the petitioner has passed on a copy of the said
sale deed 5/04 for perusal. It is seen from the recital therefrom
that the entire property of 7.875 cents is transferred by the first
respondent to George Sakaria for a sale consideration of
Rs.24,000/- undertaking that there is no encumbrance at all over
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2
the said property. The fact that 1.4 cents from out of 7.875 cents
belonging to her is in the possession of the petitioner had not
been disclosed in the document. Therefore it is contended for
the petitioner that whatever the petitioner was having is
transferred to George Sakaria who in turn has sold it to another
3rd party and that therefore no right is vested for the decree
holder to proceed with execution. This revision is filed as the
execution court has repelled the above contentions and ordered
delivery.
2. It is contended by the learned counsel for respondents 1
and 2 on the strength of the decision in Banke Behara Lal v.
Raghubar Dayal [AIR 1930 Alahabad 380] and the decision
in Cherukutty v. Velappu [1987 (1) KLT 565] that
impleadment of the assignee is not mandatory or necessary and
that the assignor can proceed with execution if the assignee has
got confidence in the assignor. It is settled position that even
after transfer of the property in dispute the transferor can
prosecute the suit or appeal and that for the purpose the
transferee need not invariably be made a party. All the same,
the contention that is advanced before me by the counsel for the
C.R.P.NO.456 OF 2006
3
petitioner is that the decree holder might be able to prosecute
the litigation on behalf of the transferee but in the instant case
as there is no reference with respect to the existence of the
decree in the sale deed and no responsibility is taken up by the
decree holder to get delivery of 1.4 cents from the petitioner and
to surrender that also to the transferee, the decision cited has no
application to the facts of this case and that the decree in favour
of the first respondent has become inexecutable at present. I am
not prepared to agree to the contentions raised but all the same
it is for the execution court to see that undue benefit is not taken
by the decree holder who has transferred the property to
someone else after the decree.
In the result, while dismissing the petition, I order that the
execution shall proceed after impleading also the transferee or
the transferees as the case may be and only thereafter delivery
shall be effected. This revision is disposed of with the above
directions.
K.P.BALACHANDRAN, JUDGE
jes