IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33447 of 2007(F)
1. SAVITHRI, W/O. RAMAKRISHNAN,
... Petitioner
Vs
1. UDAYABHANU, S/O. RAMACHANDRAN,
... Respondent
2. PADMINI, W/O. RAMACHANDRAN,
3. DAUGHTER YAMUNA, D/O. LATE RAMACHANDRAN,
4. CHANDRABHANU, S/O. LATE RAMACHANDRAN,
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.P.CHANDRASEKHAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/05/2008
O R D E R
M. SASIDHARAN NAMBIAR,J.
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W.P(C) NO.33447 OF 2007
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DATED THIS THE 28TH DAY OF MAY, 2008
JUDGMENT
Petitioner is the 12th defendant in O.S.44 of 1973. Ext.P3
preliminary decree was passed on 20.12.1977 holding that the
plaint schedule properties are available for partition and they are
to be divided and shares are to be allotted as stated in the
preliminary decree. Subsequently Ext.P4 final decree was passed
on 7.10.2003. As per clause 28 of Ext.P4 final decree plots M1,
M2, M3 and M4 in Ext.C5 plan were allotted to the petitioner.
Petitioner filed EP 47 of 2006 for taking delivery of the property
allotted to her under Ext.P4 final decree. At that stage one of the
children of Ramachandran, who was 30th defendant in Ext.P3
preliminary decree, filed a petition before the Executing Court
contending that as Ramachandran died before passing of the final
decree and his legal heirs were not impleaded petitioner is not
entitled to take delivery of the property. That petition was
dismissed. It was challenged before this court in W.P.(C) 23007 of
2006. Under Ext.P6 judgment this court dismissed that petition
holding that as per Ext.P4 final decree no share was allotted to
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the 30th defendant Ramachandran and therefore his legal heirs
are not to be impleaded in the final decree and for not impleading
the legal heirs of Ramachandran executability of the decree
cannot be challenged. Thereafter the said writ petitioner along
with his mother filed two applications before the Executing Court
EA327 of 2006 and 328 of 2006 which are Exts.P1 and P9
petitions herein (EA327 of 2006 and 328 of 2006). The petitions
were filed both under Section 47 and Rule 99 of XXI of Code of
Civil Procedure. Thereafter the said petitioners approached this
court for a direction for early disposal of the petitions by filing
W.P.(C) 22211 of 2007. Under Ext.P7 judgment this court
directed the Executing Court to dispose the applications within 6
months from 19.7.2007. Petitioner herein to whom notice was not
sent by this court before passing Ext.P7 judgment appeared
before this court and filed Review Petition 735 of 2007. Under
Ext.P8 order this court disposed the Review Petition directing the
Executing Court to conduct an enquiry regarding the
maintainability of the applications at the threshold level and find
whether the petitioners have any right to prefer a claim and if the
claim is not maintainable to dispose the petitions at the threshold.
Thereafter Ext.P1 and P9 petitions were heard by the executing
WP(C) 33447/07 3
court. Under Ext.P11 order it was found that though petitions
are not maintainable under Rule 99 of Order XXI of Code of Civil
Procedure, as the petitioners in the applications are claiming
under Ramachandran who was the 30th defendant in the suit, they
are parties to the decree and therefore their claim has to be
adjudicated under Section 47of the Code. The petitions were
thereafter posted for enquiry. Exts.P11 and P12 orders are
challenged in this petition filed under Article 227 of Constitution of
India.
2. Learned counsel appearing for the petitioner and
respondents were heard. Learned counsel appearing for the
petitioners pointed out that the Ramachandran though was the
30th defendant in the suit, did not file a written statement and did
not raise any contention with regard to the availability of the
plaint schedule property for partition and under Ext.P3
preliminary decree and P4 final decree no share was allotted to
Ramachandran and therefore though he was a former party to
the suit, he is not a party to the suit as provided under Section 47
of Code of Civil Procedure. Reliance was placed on the decision of
a learned Single Judge of this court in Francis v. Joseph Scaria
(1992(1) KLJ65). The learned counsel argued that when
WP(C) 33447/07 4
respondents are claiming right under Ext.P5 partition deed, which
came into existence subsequent to the institution of the suit and
the right claimed by them is the right which was earlier allegedly
available with Ramachandran, who did not raise any contention in
the suit cannot challenge the executability of the decree and
respondents who obtained right subsequent to the suit are not
entitled to object the executability of the decree by filing a
petition under Section 47 of the Code of Civil Procedure. The
learned counsel relying on a decision of the Apex Court in Usha
Sinha v. Dina Ram and Others (2008 SAR Civil 448) argued
that when respondents are claiming right under one of the
defendants in the suit, they are not entitled to file any petition
under rule 99 of Order XXI of Code of Civil Procedure with respect
to the subject matter of the decree and the Executing Court
should have held that Ext.P1 and P9 petitions are not
maintainable either under Section 47 or Rule 99 of Order XXI of
Code of Civil Procedure. It was argued that attempt is only to
protract the delivery by taking out a Commission and a
comparison of Item No.8 of the Ext.P3 preliminary decree with
Item No.3 of the A schedule property and Item No.1 of the B
schedule property of Ext.P5 partition deed relied on by
WP(C) 33447/07 5
respondents establish that they are the same property.
3. Learned counsel appearing for the respondents argued
that the property claimed by the respondents under Exts.P1 and
P9 petitions are not part of any of the property divided under
Ext.P5 final decree. It was argued that the properties allotted to
the respondents under Ext.P5 partition deed are different
properties and under the guise of taking delivery of the property
allotted to the respondents under Ext.P5, petitioner is not entitled
to take delivery of the property of the respondents for the reason
that respondents are claiming right originally available with
Ramachandran, the 30th defendant in the suit. It was vehemently
argued that the right claimed by respondents is not the right
which was not in respect of the property which was decided by
the court under Ext.P3 preliminary decree or P4 final decree and
therefore respondents are entitled to raise objection to the
execution of the decree in respect of their property and their
petition is liable to be considered under Rule 99 of Order XXI of
Code of Civil Procedure.
4. As rightly pointed out by the learned counsel
appearing for the petitioner, respondents are the children of
Ramachandran who was defendant No.30 in the suit. Under
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Ext.P1 and P9 petitions filed before the Executing Court
respondents are claiming right over the parties allotted under
Ext.P5 partition deed. The right claimed by them is the right
which was available with Ramachandran. When Ramachandran
did not dispute the availability of the plaint schedule properties
claimed in O.S.44 of 1973 and did not raise any claim for any
portion of the property or that they are not available for partition
or are to be excluded while dividing, respondents are not entitled
to claim any right in respect of the plaint schedule properties
which are directed to be divided under Ext.P3 preliminary decree.
As Ramachandran cannot dispute the same, respondents who are
claiming under Ramachandran and that too under Ext.P5 deed
which came into existence after the suit cannot challenge the
decree. To that extent respondents are not entitled to dispute the
executability of the decree under Section 47 or the Code of Civil
Procedure. As held by this court in Francis’s case, for the purpose
of considering the question whether respondents are parties to
the decree as contemplated under Section 47 of the Code the
question to be decided is whether the right of that party was
agitated and decided in the suit. If the right was not agitated or
decided he cannot be treated as a party for the purpose of
WP(C) 33447/07 7
Section 47. If that be so, when Ramachandran under whom
respondents claimed right did not raise any claim in respect of
any portion of the plaint schedule property, they are claiming the
right which was with Ramachandran, they are not entitled to raise
objection based on Section 47. Therefore in any view of the
matter the petitions are not maintainable under Section 47 of the
Code of Civil Procedure.
5. Then the question is whether the petitions are
maintainable under Rule 99 of Order XXI of Code of Civil
Procedure. When respondents are claiming right under
defendant No.30 who was a party to the suit and that too based
on a transfer effected subsequent to the date of instituting the
suit, respondents are not entitled to file a petition under Rule 99
of Order XXI. True if the properties claimed by them are not any
part of the decree schedule property, being third parties they are
entitled to dispute the execution of the decree and taking delivery
of the property in respect of that property. But they cannot object
to the decree holder taking delivery of the property allotted to her
under Ext.P4 final decree. As stated earlier under Clause No.28
of Ext.P4 final decree plots M1, M2, M3 and M4 in Ext.C5 plan
are allotted to the petitioner. As respondents are claiming under
WP(C) 33447/07 8
the defendant No.30 in the suit, they cannot dispute the right of
the petitioner from taking delivery of plots M1, M2, M3 and M4 as
shown in Ext.C5 plan. Even if any portion of this property are
covered under Ext.P5 partition deed, respondents are not entitled
to cause any objection to the delivery. Therefore there is no
necessity to further considering Ext.P1 and P9 applications by
Executing Court. Exts.P11 and P12 orders are set aside. Ext.P1
and P9 petitions stand dismissed. Executing Court is directed to
deliver plots M1, M2, M3 and M4 in Ext.C5 plan of Ext.P4 final
decree after identifying the properties as shown in C5 plan.
M. SASIDHARAN NAMBIAR
JUDGE
Okb/-
