IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23783 of 2009(O)
1. PADMAKARAN, S/O. LF KOCHURAMAN,
... Petitioner
Vs
1. SARAMMA KOCHI, KOCHALUM MOODU,
... Respondent
2. LATHA KOSHY OF DO....DO....
3. REJI KOSHY OF DO....DO...
4. LEENA K.KOSHY DO...DO..
5. MATHEW K. KOSHY OF DO...DO...
6. PEETHAMBARAN, S/O. KOCHURAMAN,
For Petitioner :SRI.P.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :21/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.23783 of 2009 - O
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Dated this the 21st day of August, 2009
JUDGMENT
The writ petition is filed seeking the following relief:
“To call for the records leading to Exhibit P2 and set
aside the same.”
2. Petitioner moved an application under Order XXI Rule
97 CPC resisting delivery and possession ordered over a building
in E.P.No.116 of 2008 in execution proceedings of the decree
passed in O.S.No.655 of 1998 on the file of the Munsiff Court,
Kayamkulam. He advanced a case that the judgment debtor
abandoned the decree schedule shop room ten years ago and
ever since he continued in possession and is operating the
business in the shop room. So much so, he is not liable to be
evicted under the decree passed in the suit against the judgment
debtor. The decree holder filed objections contending that the
petitioner has no independent right, title and interest over the
decree schedule shop room covered by the decree. Learned
Munsiff, after hearing both sides, dismissed the application under
the impugned over, copy of which is produced as P1. Propriety
W.P.(C).No.23783 of 2009 – O
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and correctness of P1 order is challenged in this writ petition
invoking the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India.
3. I heard the learned counsel for the petitioner.
4. Having regard to the submissions made and taking
note of the facts and circumstances presented, I find no notice to
the respondents/decree holders is necessary, and hence it is
dispensed with.
5. The learned counsel for the petitioner contended that
when an application is moved under Order XXI Rule 97 CPC, an
adjudication of the right, title and interest of the claimant over
the schedule property is absolutely essential and a dismissal of
the petition in limine without such an adjudication is not only
improper, but, illegal. Perusing P1 order passed by the learned
Munsiff, I find there is no merit in the submissions made by the
counsel. To sustain an application moved under Order XXI Rule
97 CPC to resist the execution of a decree, mere possession by
the claimant over the suit property or building is not sufficient.
He must show his right to possession independent of the
W.P.(C).No.23783 of 2009 – O
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judgment debtor. Petitioner is none other than the brother of the
judgment debtor, as seen from P1 order. His case was that his
brother had abandoned the building ten years ago and thereby he
came into possession of the building. He has not shown that he
has got a right in the property which is not affected or which
cannot be affected by the decree passed against his brother.
When frivolous petitions are filed under Order XXI Rule 97 CPC to
thwart and obstruct the delivery of the property in execution,
there is no need for any adjudication of such frivolous claims as
such petitions deserve only rejection in limine.
There is no merit in the writ petition and it is dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-