The High Court dismissed a Civil Revision Petition challenging the execution court's dismissal of a petition seeking execution of a compromise decree and cancellation of assignment deeds. The High Court affirmed the finding that the deeds were executed with the petitioner's knowledge and concurrence.
Civil Revision Petition dismissed; no order as to costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.T.SANKARAN
THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929
CRP.No. 2189 of 2002
AGAINST THE ORDER DATED 9.8.2002 IN E.P.NO.6/98 OF THE MUNSIFF'S COURT, PEERMADE.
O.S.NO.495 OF 1986 OF THE MUNSIFF'S COURT, IDUKKI.
REVN. PETITIONER: DECREE HOLDER:
P.K.JANARDHANAN, S/O. KUNJU PILLAI, POOYAPPALLIL HOUSE, MURIKKADY KARA, PERIYAR VILLAGE, PEERMADE TALUK.
BY ADV. SRI.T.I.ABDUL SALAM
RESPONDENTS: JUDGMENT DEBTORS:
R1 BY ADV. SMT.R.REMA R2 & R3 BY ADVS.M/S.C.HARIKUMAR AND R.HARIKRISHNAN
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON 31/01/2008 PASSED THE FOLLOWING:
C.M.P.NO.5435/2002 IN C.R.P.NO.2189/2002
DISMISSED
31/1/2008 SD/- K.T.SANKARAN, JUDGE
//TRUE COPY//
AHZ/
K.T.SANKARAN, J.
C.R.P. NO. 2189 OF 2002
-------------------------------------------Dated this the 31st January, 2008
O R D E R
The petitioner challenges in this Revision the order dated 9.8.2002 in Execution Petition No.6 of 1998 in O.S. No. 495 of 1986, on the file of the Court of the Munsiff of Peermade, by which the Execution Petition filed by the Petitioner was dismissed.
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appeal. (Appellants in the appeal were the revision petitioner, his mother Karthiayani, the third defendant Viswanathan, fourth defendant Thomas Chacko and the fifth defendant Sosamma.)
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matter to the executing court. The contention raised by Omana, the third respondent herein, that the Execution Petition was not maintainable against her as she was not a party to the proceeding was negatived in C.R.P.No.1461 of 1999, on the ground that she is a pendente lite transferee. A contention was put forward that as per clause 5 of the compromise, the appellants in A.S.No.78 of 1988, who were the defendants in the suit, were entitled to continue in possession of the property and, therefore, the revision petitioner is not entitled to get an assignment deed executed in his favour. This contention was rejected in C.R.P.No.1461 of 1999 holding thus:
“7. As already mentioned, clause 5 enables the appellant to continue in possession of the property. That, however, does not mean that the first respondent has no liability to execute conveyances as stipulated in clauses 1 and 3 of the compromise petition. The compromise petition has to be read as a whole. If it is so done, the conclusion inevitable is that the power to continue in possession will remain operative only as long as the revision petitioner fails to comply with his portion of the obligations contemplated in the decree. It is true that there was some delay on the part of the revision petitioner to pay off the amounts. It is also true that the first respondent in the appeal could have objected to such belated payment and claimed exemption from the operation of his part of the liabilities. However, such an event never took place. The payment made by the revision petitioner, though belated, was accepted by the first respondent in the appeal and along with that his responsibility to discharge his obligations arising under the decree also was revived. After accepting the payments, the first respondent cannot be heard to contend that being belated he can ignore such payments and refuse compliance with the duties expected of him under the compromise decree.
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“Whether the aforesaid conveyances were on demand made by the revision petitioner is a matter for evidence to be adduced before the execution court. If it is found that the contention of the first respondent in the appeal is correct in that regard, certainly the revision petitioner will not have the right to get conveyances after setting aside the aforesaid three conveyances. If, on the other hand, respondents 2 and 3 fail to establish that it was on request made by the revision petitioner that the conveyances were effected in favour of respondents 2 and 3, certainly the revision petitioner would be entitled to get appropriate reliefs in the matter through the execution court.”
Petition by the order impugned in this Revision. It was held by the executing court that Exts.A1, A2 and A2(a) were executed by the first
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respondent in favour of respondents 2 and 3 as authorised by the revision petitioner. This finding was arrived at after considering the oral and documentary evidence in the case and taking into account the facts and circumstances of the case. Before the executing court, the revision petitioner was examined as PW1. The first respondent herein was examined on commission as DW1. The second respondent was examined as DW2 and on his behalf an independent witness was examined as DW3.
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cents. Sosamma is not a party to the Execution Petition. It has also come out in evidence that at the time when the compromise petition was filed in A.S.No.78 of 1988, the property was in the possession of the revision petitioner, the third defendant Viswanathan, Karthiayani (mother of the revision petitioner) and Sosamma and they were in possession of different plots. The question considered by the court below was whether the various documents were executed by the first respondent as per the direction of the revision petitioner or without his knowledge and concurrence. After analysing the evidence, the court below held that the documents were executed by the first respondent as per the direction of the revision petitioner and with his concurrence. It was held that the evidence of PW1 would indicate that he was giving a deliberate false version. The revision petitioner in his evidence even disputed the statement in the compromise petition that the other defendants in the suit were in possession of the disputed property. The court below believed the evidence of DWs.1 to 3 and cogent reasons are stated for the same in the order impugned. The court below took note of the fact that Ext.B4 judgment clearly indicates that the defendants in the suit were in possession of the property. The compromise petition would also indicate the same. The Court below took note of the various litigations which arose between the parties as O.S.Nos.57 of 1998 and 88 of 1995 and held that the revision petitioner admitted the fact that the second
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respondent herein was in possession of an extent of 2.40 acres.
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executing court did not comply with the directions contained in the order in C.R.P.No.1461 of 1999 and on the other hand, the court below considered irrelevant materials to arrive at the conclusion. The counsel contended that the only question to be considered was whether the assignment deeds executed by the first respondent in favour of respondents 2 and 3 were with the concurrence of the revision petitioner. According to the counsel, the court below was not justified in considering the question of possession and the other circumstances which led to the compromise, in deciding the issue. I do not agree with the contention raised by the counsel for the petitioner. The court below has considered each and every material fact and the oral and documentary evidence meticulously. All the relevant aspects were taken note of and all the contentions were considered by the court below. The court below has duly complied with the directions contained in the order in C.R.P.No.1461 of 1999. I concur with the reasoning and conclusion arrived at by the court below. I am of the view that the Civil Revision Petition is devoid of merits.
Accordingly, the Civil Revision Petition is dismissed. No order as to costs.
(K.T.SANKARAN) Judge
ahz/
K.T.SANKARAN, J.
C.R.P.NO. 2189 OF 2002
O R D E R
31st January, 2008
1 issue framed by the court
Whether the execution court erred in concluding that assignment deeds were executed by the first respondent with the revision petitioner's concurrence.
P.K. Janardhanan
Raman Pillai Kunju Krishna Pillai
Viswanathan
Omana
K.T. Sankaran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
