Dismissed

Saju George v. Ammini

Kerala HC11 Jan 2016Ex.SA/1/2016

Case brief

AI extract

What is this about?

This execution second appeal challenges the dismissal of a claim petition under Order XXI Rule 97 CPC. The appellant, claiming to be a tenant without independent title, sought to remain in a property scheduled for demolition in an execution decree. The court dismissed the appeal, holding that mere possession or a corporation licence does not establish tenancy sufficient to defeat execution.

What did the court decide?

The execution second appeal was dismissed, and all interlocutory applications in the appeal were closed.

Saju George Vs Ammini — Execution and Attachment | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937

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Ex.SA.No. 1 of 2016 ()

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----------------------AGAINST THE JUDGMENT IN AS 123/2015 OF IIIRD ADDL.SUB COURT, ERNAKULAM DATED 15-12-2015 AGAINST THE ORDER IN EA NO. 122/2014 IN EP NO. 92/2010 IN OS NO. 417/2007 OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM

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APPELLANT/APPELLANT/CLAIM PETITIONER :

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SAJU GEORGE

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S/O. GEORGE, AGED 52 YEARS ARACKAL HOUSE, SREYAS NAGAR, KANIYAMPUZHA EROOR, TRIPUNITHURA

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BY ADVS.SRI.ALEXANDER JOSEPH

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SRI.M.V.SABU

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RESPONDENTS/RESPONDENTS/RESPONDENTS/DECREE HOLDERS & JUDGMENT

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----------------------------------------------------------------------------------------------------------------------DEBTORS :

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1. AMMINI D/O. LATE CHACKO @ JACOB PALACKAPPILLIL HOUSE, PERUMANOOR, ERNAKULAM VILLAGE KANAYANNUR TALUK, ERNAKULAM DIST.- 682 015.

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2. KURIAN S/O.MATHEW, PALAKKAPPILLIL, KOCHANATU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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3. AMMINI

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D/O.MATHEW, PALAKKAPPILLIL, KOCHANATTU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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4. MERCY D/O.MATHEW, PALAKKAPPILLIL, KOCHANATTU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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5. BABY D/O.LATE MATHEW, PALAKKAPPILLIL, KOCHANATTU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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...2/-

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Ex.SA.No. 1 of 2016 () -2-

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6. KOCHUTHRESSIA W/O.LATE MATHEW, PALAKKAPPILLIL KOCHANATTU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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7. JOSEPH @ MATHACHAN, S/O. LATE SIMON, PALAKKAPPILLIL, KOPPARAMBIL LANE, KADAVANTHRA NEAR ST. JOSEPH U.P. SCHOOL, KOCHI - 682 020.

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8. GIBIN SIMON

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S/O. LATE SIMON, PALAKKAPPILLIL, KOCHANATTU PARAMBIL PERUMANOOR, KOCHI -682 015.

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9. NIMIL SIMON

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S/O. LATE SIMON, PALAKKAPPILLIL, KOCHANATTU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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10. JOSEPH SIMON

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S/O. LATE SIMON, PALAKKAPPILLIL, KOCHANATTU PARAMBIL PERUMANOOR, KOCHI - 682 015.

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11. VIPIN SIMON

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S/O.LATE SIMON, PALAKKAPPILLIL, KOPPARAMBIL LANE KADAVANTHRA, NEAR ST. JOSEPH U.P. SCHOOL, KOCHI - 682 020.

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THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2016, THE COURT ON THE SAME DAY DELIVERED THE ` FOLLOWING:

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...2/-

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P.B.SURESH KUMAR, J.

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Ex.S.A.No.1 of 2016

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Dated this the 11^th day of January, 2016

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JUDGMENT

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The claim petitioner in a proceedings under Rule

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97 of Order XXI of the Code of Civil Procedure has come up in this second appeal challenging the dismissal of the claim petition and its confirmation by the appellate court.

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The first respondent and her mother Tresiamma

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instituted O.S.No.417 of 2007 against respondents 2 to 11 and others for recovery of possession of the plaint C schedule property therein and for fixation of the boundary separating the properties of the plaintiff and the defendants therein. The suit was decreed fixing the boundary separating the properties of the plaintiffs and defendants

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Ex.S.A.No.1 of 2016 2

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and also directing the defendants to hand over vacant possession of the plaint C schedule property to the plaintiffs, after dismantling the structures therein. After the decree, the first respondent filed E.P.No.92 of 2010 for execution of the decree. In the execution petition, the appellant preferred E.A.No.122 of 2014 invoking Order XXI Rule 97 of the Code of Civil Procedure alleging that he is the tenant of the building situated in the C schedule property to the suit under the mother of the first respondent Thresiamma and therefore, he cannot be evicted from the building in the guise of executing the decree. The execution court rejected the contention of the appellant and dismissed E.A.No.122 of 2014. Though the appellant took up the matter in appeal, the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. The appellant is aggrieved by the concurrent decisions against him and hence this execution second appeal.

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Heard the learned counsel for the appellant.

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Ex.S.A.No.1 of 2016

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As noted above, the decree permits recovery

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of possession of the plaint C schedule property after demolishing the structures therein. The case of the appellant is that he is the tenant of the structure in the plaint C schedule property permitted to be demolished as

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per the terms of the decree. As such, in order to succeed in the claim petition, the appellant should establish that he has got an independent right over the plaint C schedule property and the building therein. Admittedly, the appellant does not claim any title to the plaint C schedule property or to the building therein. His case is only that he is the tenant of the building in the plaint C schedule property. The stand taken by the appellant as regards the tenancy is that he was put in possession by the second judgment debtor as an agent of Tresiamma, the mother of the first respondent. In other words, according to the appellant, he is a tenant of the building under the decree holders. Though the appellant contends that he is a tenant of the building under the decree

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Ex.S.A.No.1 of 2016

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holders, there is nothing on record to indicate that he is the tenant of the building under the decree holders. The question as to whether the appellant is a tenant under the decree holders is a pure question of fact and the decision rendered on the said question by the courts below cannot be challenged in a second appeal filed under Section 100 of the Code of Civil Procedure. That apart, the appellant relies on the licence issued by the Cochin Corporation in respect of the said building to contend that he is a tenant in occupation of the building. Merely for the reason that the appellant has obtained a licence in respect of the building, it cannot be presumed that he is a tenant in occupation. The fact that the property is owned by the decree holders is not in dispute. If the appellant is put in possession by the second judgment debtor as contended by him, the decree can certainly be enforced against him.

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In the said view of the matter, there is no merit in the execution second appeal and it is, accordingly,

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Ex.S.A.No.1 of 2016

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dismissed. All the interlocutory applications in the appeal are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Saju George v. Ammini

Case brief

What is this about?

What did the court decide?

Saju George v. Ammini

Case brief

What is this about?

What did the court decide?

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