IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 399 of 2010(O)
1. JOY ALEXANDER, S/O.ALEXANDER,
... Petitioner
Vs
1. C.B.JALAJA, PRAVEEN BHAVANAM,
... Respondent
2. SHIHAB, SHIHAB MANZIL,
For Petitioner :SRI.P.SIVARAJ
For Respondent :SRI.K.SUBASH CHANDRA BOSE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/10/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) No.399 of 2010
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Dated this the 20th day of October, 2010
J U D G M E N T
Respondent No.1 obtained a decree for payment of money
against the younger brother of petitioner who, according to the
petitioner is not heard of since the last several years.
Respondent No.1 executed the decree and property belonging to
the judgment debtor was sold in auction and purchased by
respondent No.2 on 19.10.2009 for a sum of Rs.6,75,000/-.
Respondent No.2 filed application for delivery of property in his
favour. Petitioner filed Ext.P1, application (E.A. No.394 of 2010)
claiming that 2.75 cents in R.S. No.33/62 belonged to his father
by way of kudikidappu and that he has been residing in the said
property for the last 40 years. He claimed to have 1/6th right in the
said property along with other legal heirs of the father by
succession consequent to the death of the father. Respondent
No.2 resisted the application contending that the petitioner has
no right over the property. Before the executing court petitioner
produced Exts.A1 to A5(a), all meant to show that petitioner was
residing in the property sold in auction. Executing court observed
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that case records revealed that petitioner’s father had assigned
the property in favour of the judgment debtor by a sale deed on
16.12.2005 and that petitioner failed to prove any right, title or
interest over the said property except that he is residing therein.
Accordingly the application was dismissed. That order is under
challenge in this petition. Learned counsel for petitioner
contended that evidence on record was not properly appreciated
by the executing court. Learned counsel for respondent No.2
contended that property has already been delivered over to him,
that fact has been recorded and execution application was closed
on 19.10.2010. Learned counsel for respondent No.2 also
challenged maintainability of this petition under Article 227 of the
Constitution as petitioner is asserting independent right over the
property in which case the order on E.A. No.394 of 2010 must be
deemed to be a decree under Rule 103 of Order XXI of the Code of
Civil Procedure (for short, “the Code”) and hence is subject to
appeal.
2. Since by the time E.A.No.394 of 2010 was filed the
sale was effected and confirmed that application can only be
treated as an anticipatory obstruction under Rule 97 of Order XXI
of the Code in which case executing court was required to
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conduct enquiry and determine the right claimed by petitioner
under Rule 101 of Order XXI of the Code. Rule 98 of Order XXI
states that on determination of the question referred to in Rule
101, the court in accordance with provisions of sub-rule (a) of
that Rule make an order allowing the application and directing
that the applicant be put in possession of the property or
dismissing the application or pass such other order as in the
circumstances of the case the court may deem fit. Then comes
Rule 103 of Order XXI which states that where any application
has been adjudicated upon under Rule 98 or Rule 100 the order
made thereon shall have the same force and be subject to the
same conditions as to an appeal or otherwise as if it were a
decree. In the present case petitioner is not making a claim
under the judgment debtor. Instead he is asserting independent
right over the property claiming that it originally belonged to his
father by way of kudikidappu and on the death of the father by
succession he got 1/6th right in the said property. Since
petitioner is asserting independent right and not claiming under
the judgment debtor, the order on E.A. No.394 of 2010 which is
under challenge in this Original Petition has to be deemed to be
decree as provided in Rule 103 of Order XXI which is subject to an
appeal. When statutory remedy of appeal is available to the
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petitioner the power under Article 227 of the Constitution is not
required to be exercised. This petition is therefore liable to be
dismissed without prejudice to the statutory right of petitioner to
challenge the impugned order by way of appeal as provided under
law.
Resultantly, this petition is dismissed without prejudice to
that right of petitioner.
THOMAS P. JOSEPH, JUDGE.
vsv