IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 20518 of 2006(P)
1. SUDHEER KUMAR, S/O. CHELLAPPAN,
... Petitioner
Vs
1. BABY VARGHESE, S/O. GEEVARGHESE,
... Respondent
For Petitioner :SRI.M.DINESH
For Respondent :SRI.J.JAYAKUMAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/11/2006
O R D E R
M.SASIDHARAN NAMBIAR, J.
------------------------------------------
W.P.C.NO.20518 OF 2006 (P)
-----------------------------------------
Dated this the 28 th day of November, 2006.
JUDGMENT
Petitioner is the 10th judgment debtor in E.P.99/03.
Respondent is plaintiff / decree holder. Respondent instituted
O.S.17/95 seeking a decree for specific performance of agreement for
sale, executed by the deceased defendant, father of petitioner. The
suit was decreed ex-parte. As per the decree, father of petitioner has
to execute a sale deed in respect of 25 cents of the plaint schedule
property. Respondent filed E.P. 99/03 for execution of the decree. As
the judgment debtor died, his legal heirs including petitioner were
impleaded. Petitioner filed objection in the execution petition
contending that out of 25 cents, 15 cents was transferred by judgment
debtor in 1975 in favour of Nazeema Beebi and it was subsequently
purchased by Vimala under R1(b) document no.3453/96 and later it
was purchased by petitioner from Vimala under sale deed 3453/96
and therefore that property has to be excluded. Respondent realising
that transfer was much earlier to the agreement for sale, admitted
before the executing court that sale deed need be executed only for
the remaining 10 cents. The draft sale deed was produced and Ext. R1
W.P.C.NO.20518 OF 2006 (P)
2
(d) sale deed, was executed by the court. When that property was
sought to be taken delivery of, petitioner objected to it contending that
apart from the transfer made by the father, an indemnity bond was
executed as evidenced by R1(c), in respect of the remaining 10 cents
and therefore the said 10 cents cannot be taken delivery of. The
executing court as per Ext.P6 order, directed delivery of 10 cents of
the property after identifying the property. This petition is filed
challenging that order under Article 227 of Constitution of India.
2. Learned counsels appearing for petitioner and respondent
were heard.
3. Argument of learned counsel appearing for petitioner was
that, out of 25 cents covered by the decree, 15 cents has now been
excluded and the sale deed was executed only in respect of the 10
cents and the description of the improvements shown in the sale deed
show that the said property takes in portion of the excluded 15 cents
also and therefore the property cannot be taken delivery of. It was
also argued that in view of the indemnity bond executed in favour of
the bank, Thonnakkal Agricultural Credit Credit Co-operative Society,
jointly by petitioner and his father, remaining 10 cents also cannot be
W.P.C.NO.20518 OF 2006 (P)
3
taken delivery of. The learned counsel appearing for respondent
argued that the indemnity bond R1(c) establish that the property
exclusively belonged to judgment debtor and petitioner is not entitled
to any right over 10 cents of the property which is the subject matter
of the agreement for sale and respondent has already given up his
right over the remaining 15 cents as a sale deed was executed by the
father of petitioner much earlier to the agreement for sale and
petitioner being one of the legal heirs is not entitled to dispute the
right of the respondent to take delivery of 10 cents of the property.
4. As per the decree, judgment debtor, the father of
petitioner, had to execute a sale deed in respect of the 25 cents of the
property. When it was brought to the notice of the court that much
earlier to the agreement for sale, father had transferred 15 cents of
the property, respondent agreed that he is only entitled to get a sale
deed executed in respect of the remaining 10 cents. Even though
father along with petitioner had executed an indemnity bond in favour
of the Society, petitioner did not derive any right under the document
The document itself establishes that the property belongs to the father
of the petitioner and though petitioner was also joint execution, he has
no right over that property. Therefore petitioner is not entitled to any
W.P.C.NO.20518 OF 2006 (P)
4
right in derogation of the right of the respondent under the agreement
for sale, by virtue of R1(c) sale deed, in respect of the remaining 10
cents. Out of the 25 cents, excluding the 15 cents assigned by the
father of petitioner to Nazeema Beebi, who in turn assigned it to
Vimala and was later purchased by the petitioner, petitioner cannot
claim right. Therefore respondent is entitled to get delivery of the
remaining 10 cents. Under Ext.P6 order, executing court only directed
delivery of the said property after proper identification. There is no
infirmity in Ext.P6 order. It is made clear that before 10 cents is
delivered to the petitioner, the total 25 cents has to be identified and
then 15 cents obtained by petitioner from Vimala which in turn was
obtained from Nazeema Beebi, has to be excluded. Respondent is only
entitled to the balance property and the improvements in that 10
cents of property. Petition is disposed accordingly.
SASIDHARAN NAMBIAR,
JUDGE.
bkn