Remanded

Gopalakrishnan Nair v. Ramakrishnan Nair and Others

Kerala HC28 Sept 2012CRP/411/2011

Case brief

AI extract

What is this about?

In a civil revision petition challenging an execution court's order dismissing a petition based on property transfer during appeal, the High Court held that a decree remains executable despite assignment. It set aside the dismissal and remanded the execution matter for proper consideration regarding impleadment.

What did the court decide?

Impugned order setting aside; Execution petition E.P.No.53/2011 remanded to Munsiff Court; Civil Revision Petition disposed of.

Gopalakrishnan Nair Vs Ramakrishnan Nair and Others — Execution and Attachment | Kerala HC (2012)

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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 V.CHITAMBARESH

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FRIDAY, THE 28TH DAY OF SEPTEMBER 2012/6TH ASWINA 1934

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CRP.No. 411 of 2011 ( )

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AS.307/2011 of ADDL.DISTRICT COURT (ADHOC)-II, KOTTAYAM OS.130/1996 of MUNSIFF COURT, VAIKOM

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REVISION PETITIONER(S):

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GOPALAKRISHNAN NAIR,AGED 58, S/O.GOVINDAPILLAI,VALIYA EZHUMAYIL HOUSE KIZHAKKUMCHERI THEKKEMURI FROM KUNNATHU VEETTIL KIZHAKKUMCHERITHEKKEMURI, NADUVILE VILLAGE,VAIKOM.

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BY ADVS.SRI.BENNY VARGHESE

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SRI.SHAJI THANKAPPAN PRAMOD KOCHUTHOMMEN.E.

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RESPONDENT(S):

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1. RAMAKRISHNAN NAIR,AGED 69, S/O.GOVINDA PILLAI,KUNNATHU HOUSE KIZHAKKUMCHERITHEKKEMURI, NADUVILE VILLAGE VAIKOM P.O,686 141.

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2. RADHAKRISHNAN NAIR,

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AGED 53,S/O.GOVINDA PILLAI,S/O.GOVINDA PILLAI KUNNATHU HOUSE,KIZHAKKUMCHERITHEKKEMURI NADUVILE VILLAGE,VAIKOM P.O 686 141.

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3. SYAMALA,AGED 60,

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D/O.GOVINDA PILLAI,JEEVAN JYOTHI HOUSE MANAKKAD KARA,MANAKKAD VILLAGE,THODUPUZHA TALUK PO 685584

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4. SUBADHRA

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AGED 55,D/O.GOVINDA PILLAI, KUNNATHU HOUSE KIZHAKKUMCHERITHEKKEMURI, NADUVILE VILLAGE VAIKOM P.O, KOTTAYAM DIST 686 141.

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R,R2 BY ADV. SRI.JOBI.A.THAMPI

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R,R1,3,4 BY ADV. SRI.GEORGE KARITHANAM VARGHESE R,R1,3,4 BY ADV. SRI.C.I.ABRAHAM R,R1,3,4 BY ADV. SRI.JOSE KURIAKOSE (VILANGATTIL)

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28-092012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 411 of 2011 ( )

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APPENDIX

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PETITIONERS ANNEXURE

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ANNEXURE A1	COPY OF the JUDGMENT IN O.S. NO.130/1996 ON THE FILE OF THE MUNSIFF COURT, VAIKOM
ANNEXURE A2	COPY OF THE JUDGMENT IN A.S. NO.307/2001 ON THE FILE OF THE DISTRICT COURT, KOTTAYAM
ANNEXURE A3	COPY OF I.A. NO.1929 OF 2009 IN A.S. NO 307 OF 2001 FILED BEFORE THE DISTRICT COURT, KOTTAYAM

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RESPONDENTS ANNEXURE NIL

TRUE COPY

P.A. TO JUDGE

SMM

V.CHITAMBARESH,J.

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= = = = = = = = = = =

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C.R.P No.411 of 2011

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= = = = = = = = = = = == = = = = Dated this the 28^th day of September, 2012

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O R D E R

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The suit is one for declaration of right over item No.6

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pathway and for a mandatory injunction to remove the obstruction therein. The plaintiff also sought prohibitory injunction as regards interference with the use of the pathway on the ground that it is kept common in the partition deed dated 22-9-1992 executed between the members of the family. Item No.1 property of the plaint schedule belonged to the plaintiff and item No.6 pathway was being used for the purpose of egress and ingress to item No. 1 property.

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The suit was decreed as prayed for on 31-7-2001 and defendant Nos.1 to 4 filed an appeal therefrom as A.S No.307/2001 on the file of the Court of the Additional District Judge of Adhoc-II, Kottayam. The plaintiff /decree holder sold item No.1 property to the second defendant/second judgment debtor during the pendency of the appeal on 21-2-2006 by a sale deed (document No.426/2006, S.R.O Vaikom) . The

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C.R.P No.411 of 2011 2

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second defendant who was the second appellant in the appeal before the lower appellate court filed I.A No.1929/2009 in A.S NO.307/2001 intimating the court about the assignment of item No.1 property pending appeal. Such an application was obviously filed invoking the powers under Order XXII Rule 10 of the Code of Civil Procedure.

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It is trite law that the assignor or the assignee with the leave of the Court can continue the lis (See Amit Kumar Shaw vs. Farida Khatoon (2005 (2) KLT 806 (SC)) . The second defendant in explicit terms stated in I.A No. 1929/2009 that the decree of the trial court may be confirmed and that he is not prosecuting the appeal. It should be taken that the decree passed in the appeal confirming the decree of the trial court would enure to his benefit also. The decree was put into execution by the plaintiff/decree holder in E.P No.53/2011 in O.S No.130/1996 on the file of the Court of the Munsiff of Vaikom

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The execution court has surprisingly dismissed the execution petition on the ground that the decree has become inexecutable on account of assignment of item No.1 property pending appeal. The executing court cannot go behind the decree and can only execute the decree as it stands. It would

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C.R.P No.411 of 2011

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have been better if the second defendant had also joined the plaintiff in the execution petition to realise the fruits of the decree. The reasoning of the execution court that the decree gets effaced by the assignment of the item No.1 property eventhough the decree relates to item No.6 pathway cannot be comprehended in law. I have no other option but to set aside the impugned order and remand E.P No.53/2011 in O.S No.130/1996 on the file of the Court of the Munsiff of Vaikom.

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It is open to the second defendant either to file an application for impleadment as an additional petitioner in the execution petition or to get himself transposed as an additional execution petitioner under the circumstances. It is all a matter for the court below to consider after hearing the other defendants/judgment debtors also under the circumstances.

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No further directions are called for and the Civil Revision Petition is disposed of. No costs.

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V.CHITAMBARESH. JUDGE

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smm

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C.R.P No.411 of 2011 4

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C.R.P No.411 of 2011 5

Gopalakrishnan Nair v. Ramakrishnan Nair and Others

Case brief

What is this about?

What did the court decide?

Gopalakrishnan Nair v. Ramakrishnan Nair and Others

Case brief

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