IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex.FA.No. 7 of 2010()
1. VAMALOCHANA,
... Petitioner
Vs
1. AJAYAKUMAR,
... Respondent
2. V.SALIMKUMAR,
For Petitioner :SRI.M.DINESH
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :26/05/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
-------------------------------
Ex.F.A.NO.7 OF 2010 &
C.M.APPLN.NO.499 OF 2010
IN
Ex.F.A.NO.7 OF 2010 ()
-----------------------------------
Dated this the 26th day of May, 2010
J U D G M E N T
THOTTATHIL B. RADHAKRISHNAN, J.
The Execution first appeal is filed with a petition to
condone an enormous period of delay of more than six years.
The plea in support of the application for condonation of delay is
that the appeal was wrongly presented before the District Court,
that it was entertained, but ultimately returned for presentation
before the proper court. With this, we examined whether the
appellant/petitioner has a prima facie case for admission of the
execution first appeal.
2. The 1st respondent sued the 2nd respondent on a
strength of an agreement for sale. The title held out by the
Ex.F.A.NO.7 OF 2010 &
C.M.APPLN.NO.499 OF 2010 2
IN
Ex.F.A.NO.7 OF 2010 ()
2nd respondent was on the basis of a gift to him by his mother.
The appellant is the 2nd respondent’s mother.
3. When the decree was put in execution, the appellant
filed an application invoking Order XXI Rule 97 of the Code of
Civil Procedure challenging the gift deed shown to have been
executed by her in favour of her son, the defendant/judgment
debtor. In support, another son of the appellant was examined.
Though a commissioner was deputed, the appellant could not
give evidence.
4. Whatever be the quality of the evidence on record, we
are clear in our mind that an application under Order XXI Rule
97 of the CPC cannot be filed on the basis of the aforesaid facts.
The appellant/petitioner admits the existence of the settlement
deed by her in favour of her son, the 2nd respondent. If that be
so, her right, if any, to challenge that deed, cannot be
established making an application under Order XXI Rule 97 of
Ex.F.A.NO.7 OF 2010 &
C.M.APPLN.NO.499 OF 2010 3
IN
Ex.F.A.NO.7 OF 2010 ()
the CPC. We do not express anything on her right otherwise,
though the learned counsel argued that the appellant may have a
right to sue for setting aside that document.
5. For the aforesaid reasons, we do not find any reason
to entertain this execution first appeal. Accordingly the
C.M.Application and the execution first appeal are dismissed.
THOTTATHIL B. RADHAKRISHNAN
JUDGE
S.S.SATHEESACHANDRAN
JUDGE
prp
Ex.F.A.NO.7 OF 2010 &
C.M.APPLN.NO.499 OF 2010 4
IN
Ex.F.A.NO.7 OF 2010 ()