Dismissed

Attaparambil Moideenkutty v. Kozhippurath Mohammed

Kerala HC21 Jul 2008CRP/555/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a Civil Revision Petition challenging an executing court's order to identify 10 cents of schedule property. The bench held there was no illegality or irregularity, as the decree holder’s entitlement remained clear despite pendency of related appeals and suits, and no stay order was warranted.

What did the court decide?

The Civil Revision Petition filed under Section 115 CPC and the Application No.1631/2008 were both dismissed.

Attaparambil Moideenkutty Vs Kozhippurath Mohammed — 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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MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930

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CRP.No. 555 of 2008(V) ---------------------AGAINST THE ORDER DATED 05/07/2008 IN EP 404/2007 IN OS.50/1983 of MUNSIFF COURT, TIRUR

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PETITIONER-DECREE DEBTOR-DEFENDANT:

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

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VATTAPARAMBIL MOIDEENKUTTY, S/O.KUNHALI, TIRUR TALUK, THIRUNAVAYA AMSOM, KARATHUR DESOM.

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BY ADV. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.K.P.PAUL SAJAN

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RESPONDENT: DECREE HOLDER – PLAINTIFF:

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

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KOZHIPPURATH MOHAMMED, S/O.KUNHIMOIDEENKUTTY, TIRUR TALUK, THIRUNAVAYA AMSOM, KARATHUR DESOM.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER ON I.A.NO.1631/2008 IN C.R.P.NO.555/2008

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DISMISSED

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21/07/2008 SD/- M.SASIDHARAN NAMBIAR,JUDGE

/TRUE COPY/

P.S. TO JUDGE

Kss

M.SASIDHARAN NAMBIAR,J.

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===========================

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C.R.P. No.555 OF 2008 ===========================

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Dated this the 21st day of July, 2008

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ORDER

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This revision petition is filed under section

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115 of the Code of Civil Procedure challenging the order passed by Munsiff Court, Tirur in

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E.P.404/2007 deputing a Commissioner to identify 10

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cents of property from the decree schedule property which is to be excluded.

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Learned senior counsel appearing for

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petitioner was heard.

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Learned senior counsel argued that the question whether respondent decree holder is

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entitled to get purchase certificate as directed by this court in O.P.15742/1993, is challenged before the Division Bench in Writ Appeal 2713/2002

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and without disposing the Writ Appeal executing

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court was not justified in granting an order to identify 10 cents of the property under the impugned order. It was also argued that

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CRP No.555/2008 2

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O.S.263/2006 filed by the petitioner against the respondent is pending and when that suit is pending, respondent is not entitled to execute the decree. Learned counsel appearing for respondent who appeared by lodging a caveat argued that entire

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question was considered by this court in S.A.929/1992 and decree was granted in favour of respondent excluding 10 cents which is directed to be identified by the executing court and there is no illegality or irregularity warranting

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interference.

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The entitlement of the petitioner to the decree schedule property including 10 cents was considered by this court in S.A.929/1992. Though petitioner and respondent had separately claimed tenancy right in respect of the entire decree schedule property having an extent of 50 cents, this court in C.R.P.2888/1986 and 2968/1986 found that respondent decree holder is entitled to

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CRP No.555/2008 3

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purchase jenm right in respect of the entire decree schedule property. It is based on grievance of respondent that consequent to that order purchase certificate was not issued by the Land Tribunal this court directed in O.P.15742/1993 to issue purchase certificate, which is now pending in W.A.2713/2002. This court considered the effect of the Writ Appeal in the Second Appeal and found that finding that respondent is the tenant and petitioner is not the tenant of the decree schedule property has become final. In such circumstance, pendency of the Writ Appeal is not a ground to deny the fruits of the decree to the respondent. Similarly fact that petitioner instituted a suit before Munsiff Court, Thrissur as O.S.263/2006 is also not a ground to deny execution of the decree sought for by the respondent. I do not find any reason to grant an order of stay as canvassed by the learned counsel appearing for petitioner

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CRP No.555/2008 4

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invoking the provisions of Rule 29 of Order XX1 of the Code of Civil Procedure. On the facts and circumstances of the case, there is no illegality or irregularity in the impugned order passed by the executing court.

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Civil Revision Petition is dismissed.

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M.SASIDHARAN NAMBIAR JUDGE

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tpl/-

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M.SASIDHARAN NAMBIAR, J.

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--------------------W.P.(C).NO. /06

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JUDGMENT

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SEPTEMBER,2006

Attaparambil Moideenkutty v. Kozhippurath Mohammed

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Attaparambil Moideenkutty v. Kozhippurath Mohammed

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