Dismissed

Ammini v. Aleyamma

Kerala HC25 Jul 2008CRP/30/2004

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a civil revision petition filed under Section 115 CPC challenging an order dismissing an application under Order XXI Rule 97 for inquiry into truth of facts in execution proceedings. The court held the petition is not maintainable as the order is appealable under Order XXI Rule 103.

What did the court decide?

Civil revision petition dismissed holding it is not maintainable as the underlying order is appealable.

Ammini Vs Aleyamma — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930

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CRP.No. 30 of 2004()

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--------------------------AGAINST THE ORDER DATED 12/12/2003 IN EA 44/03 IN EP 15/02 IN OS.89/1998 of MUNSIFF COURT, IDUKKI .................... REVN. PETITIONER/PETITIONER IN E.A:

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---------------------------------------------------------

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AMMINI. W/O. CHAKKAN, OLIKKAL HOUSE, KANJIKUZHI VILLAGE, CHURULIPPATHAL TRIBAL COLONY, MAZHUVADY, THODUPUZHA TALUK, IDUKKI DISTRICT.

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BY ADV. SRI.JOHNSON P.JOHN

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SRI.RAJU VADAKKEKKARA SRI.BABY MATHEW

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RESPONDENTS/ RESPONDENT IN E.A:

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--------------------------------------------------------

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1. ALEYAMMA, W/O. SAMUEL, AGED 66 YEARS, NADUPARAMBIL HOUSE, KATHIPPARA KARA, VELLATHOOVAL VILLAGE, IDUKKI DISTRICT.

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2. SAJI, S/O.SAMUEL, AGED 30 YEARS,

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-DO- -DO-

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3. CHAKKAN, S/O. NAGAN, OLIKKAL HOUSE, KANJIKUZHI VILLAGE, CHURULIPPATHAL TRIBAL COLONY, MAZHUVADY, THODUPUZHA TALUK, IDUKKI DISTRICT.

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BY ADV. SRI.M.N.SANJITH - R2

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SRI.JAISON JOSEPH - R2

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Rs/

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M. SASIDHARAN NAMBIAR, J.

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C.R.P. NO. 30 OF 2004

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Dated this the 25^th day of July, 2008

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O R D E R

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Petitioner is the wife of the judgment debtor in O.S. 89 of 1998 on the file of Munsiff Court, Idukki. E.P. 15 of 2002 was filed for execution of Ext.P2 decree declaring his title and recovery of possession of the decree schedule property. Petitioner filed E.A. 44 of 2003, an application under Rule 97 of Order XXI of Code of Civil Procedure. Learned Munsiff, after evaluating the evidence, dismissed the petition. This petition is filed under Section 115 of Code of Civil Procedure challenging the said order.

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Rule 103 of Order XXI of the Code of Civil

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Procedure provides that where any application has been adjudicated as provided under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same condition as to an appeal, or otherwise, as if it were a decree. A petition filed under Rule 97 of Order XXI of the Code is to be adjudicated as provided under Rule 98. Under Rule 101 of Order XXI of the Code, all questions including questions

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CRP30/2004 2

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relating to right, title or interest in the property, arising between the parties to a proceeding on an application and relevant to the adjudication of the application shall be determined by the Court. Hence the order passed in the application is to be challenged in an appeal. Section 115 of the Code of Civil Procedure provides that a revision will lie only if no appeal will lie. When the order passed dismissing the application filed under Rule 98 of Order XXI is to be challenged in an appeal, no revision will lie. Hence the revision is not maintainable. Revision petition is dismissed. Petitioner is entitled to challenge the order in the appeal.

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M. SASIDHARAN NAMBIAR, JUDGE

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Okb/-

Ammini v. Aleyamma

Case brief

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What did the court decide?

Ammini v. Aleyamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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