Dismissed

Madhavi Amma(Died) and Another v. Sarada Amma and Another

Kerala HC23 Feb 2011CRP/61/2011

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a Civil Revision Petition challenging the dismissal of an execution petition. The court held that the lower court correctly found, based on evidence appreciation, that the decree holder did not prove respondents demolished the building in violation of the decree.

What did the court decide?

The Civil Revision Petition was dismissed; the order of the court below was upheld.

Madhavi Amma(Died) and Another Vs Sarada Amma and… — Execution and Attachment | Kerala HC (2011)

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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 K.T.SANKARAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932

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CRP.No. 61 of 2011() -------------------EP 649/2005 IN OS.1305/1999 OF PRINCIPAL MUNSIFF COURT,ERNAKULAM

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REVN. PETITIONER(S): PETITIONERS/DECREE HOLDERS/PLAINTIFF

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MADHAVI AMMA, D/O.KUNJI AMMA, THUNDATHIL HOUSE, OLD PADMA PRESS, KISHATH ROAD NORTH END, THRIPPUNITHURA (DIED)

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NANDA KUMAR, S/O. LATER MADHAVI AMMA AGED 37, THUNDATHIL HOUSE, OLD PADMA PRES, KIZHETH ROAD, TRIPPUNITHURA, NOW RESIDING AT KATTAPPILLIL HOUSE, VETTEKUNNU, CHOTTANIKKARA.

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BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED

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RESPONDENT(S): JUDGMENT DEBTORS/DEFENDANTS

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SARADA AMMA, W/O. D.S.UNNITHAN, AGED 62, DURGA NIVAS, HOUSE, NO.15/65, CHAKKAMKULANGARA WEST NADA, TRIPPUNITHURA 683 311.

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D.S.UNNITHAN, AGED 72,DURGA NIVAS, HOUSE NO.15/65,CHAKKAMKULANGARA, WEST NADA, TRIPPUNITHURA 683 311.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN, J.

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C.R.P.No.61 of 2011

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Dated this the 23rd day of February, 2011

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O R D E R

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The petitioners are the legal representatives of the decree holder in O.S.No.1305 of 1999 on the file of the court of the Principal Munsiff of Ernakulam. The suit was filed for an injunction restraining the defendants from evicting the plaintiff otherwise than by due course of law. The plaintiff was the tenant of the defendants in a residential building. The suit was decreed. The decree holder, the predecessor in interest of the petitioners herein, filed E.P.No.649 of 2005 alleging that in violation of the decree, during the night of 5.9.2005, the respondents and their agents demolished a portion of the decree schedule building. The decree holder was forced to take shelter in the house of her son's friend on 6.9.2005. Taking advantage of that situation, the major portion of the remaining building was also demolished on 6.9.2005. It

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CRP 61/2011

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was alleged that the respondents willfully violated the decree.

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The respondents denied the allegations. They

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contended that the decree holder purchased a new building at Tripunithura and she shifted her residence to that building on 25.8.2005. The decree holder and her son Nandakumar are permanently residing in that building. The household articles in the decree schedule building were removed by the decree holder herself. Later, the respondents were implicated in several criminal cases. The decree holder and her son demolished a portion of the decree schedule building to make it appear that the respondents violated the decree.

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Before the executing court, PWs 1 and 2 were examined and Exhibits A1 to A21 were marked on the side of the decree holder. Exhibits B1 to B3 were marked and DWs 1 to 9 were examined on the side of the respondents. The Commissioner's report was marked as Exhibit C1 and he was examined as CW1.

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CRP 61/2011

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The executing court dismissed the Execution Petition. That order was challenged in C.R.P.No.67 of 2009. This Court set aside the order of the execution court and remanded the case for fresh disposal. Thereafter, the executing court passed the order dated 29th September, 2010 dismissing the Execution Petition, which is under challenge in this Civil Revision Petition.

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It is not disputed that subsequent to the passing of the decree, R.C.P.No.177 of 2004 was filed by the daughter of the judgment debtors to whom the property was allotted on partition, for eviction of the present decree holder. The Rent Control Court allowed the petition on 14.10.2005. In execution of the order in R.C.P.No.177 of 2004, delivery of the property was taken on 22.8.2008. Therefore, the decree schedule property no longer could be claimed to be in possession of the petitioners after 22.8.2008. However, the decree holder alleged that the offending acts were committed by the respondents on 5.9.2005, before getting the order in

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CRP 61/2011

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R.C.P.No.177 of 2004.

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The court below considered the oral and

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documentary evidence in great detail and arrived at the following findings:

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(a) The evidence of PW1, the son of the decree holder, cannot be solely relied on to arrive at a conclusion that the demolition of the building was made by the judgment debtors. It needs corroboration.

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(b) The evidence of PW2 cannot be relied on to find that

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the judgment debtors demolished the building.

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bring out that they were in any way responsible for the mischief.

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(d) The judgment debtors did not adduce reliable and direct evidence to prove that the mischief was done by the decree holder and her men.

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(e) The evidence of DW3, the Bank Manager, would indicate that ` 11 lakhs was disbursed by the decree holder on

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CRP 61/2011

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12.4.2005 and 23.8.2005. The evidence of DW1 shows that

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he assigned the property to the decree holder's son on 23.8.2005. This would probablise the case of the judgment debtors that the decree holder purchased a house at Tripunithura on 23.8.2005 for her son Ramachandran by using the funds withdrawn from the Bank.

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(f) The evidence of the official of the Tripunithura Municipality (DW4), the Manager of Reshmi Gas Agency (DW5), an auto driver (DW6), the postman (DW7) and a neighbour (DW8) would indicate that the case put forward by the decree holder is not true and that the case put forward by the respondents is probable.

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(g) The fact that no household articles were found in the decree schedule building at the time of inspection by the Commissioner would support the case of the respondents that the decree holder shifted her residence.

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(h) The available evidence in the case would show that the decree holder shifted her residence from the decree schedule building before the demolition of the building.

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CRP 61/2011

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(i) The decree holder failed to prove that the judgment debtors demolished the building willfully and in violation of the decree.

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These findings were arrived at on an appreciation of the evidence on record. In a Civil Revision Petition under Section 115 of the Code of Civil Procedure, a finding of fact arrived at on evidence cannot normally be interfered with unless the parameters mentioned in Section 115 are satisfied. I do not think that the order passed by the court below suffers from any infirmity. There is no jurisdictional error or error of law in the order passed by the court below. The Civil Revision Petition fails and it is accordingly dismissed.

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K.T.SANKARAN

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JUDGE

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csl

Madhavi Amma(Died) and Another v. Sarada Amma and Another

Case brief

What is this about?

What did the court decide?

Madhavi Amma(Died) and Another v. Sarada Amma and Another

Case brief

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What did the court decide?

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