Dismissed

Godavarma v. Ajayakhosh

Kerala HC8 Feb 2016OP(C)/857/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition challenging an order dismissing an application for declaring a decree holder's lack of right to execute. The court held that such declarations are not maintainable in execution proceedings and title disputes must be raised via separate suits.

What did the court decide?

The petitioner's application to declare the first respondent has no right to execute the decree was dismissed.

Godavarma Vs Ajayakhosh — 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 K.ABRAHAM MATHEW

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MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937

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OP(C).No. 857 of 2015 (O)

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-------------------------(EA.NO.59/2014 IN EP.NO.232/2010 IN OS.NO. 834/1994 OF PRINCIPAL MUNSIFF COURT, KOLLAM)

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PETITIONER :

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GODAVARMA, AGED 59 YEARS, S/O.JANARDHANAN, KUZHIVILA VEEDU, (THENGAYYATHU VEEDU, AISWARYA NAGAR NO.1), MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT.

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BY ADVS.SRI.G.P.SHINOD

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SRI.RAM MOHAN.G. SRI.MANU V. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR

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RESPONDENTS:-

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1. AJAYAKHOSH, S/O.CHELLAPPAN, KOCHU MEDAYIL VEEDU,

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MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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2. SUVARNAN @ SUVARNA KUMAR, S/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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3. SUDESHNA KUMAR, S/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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4. SUPRIYAKUMAR, S/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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5. SUKHILAL,

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S/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

2/-

sts

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OP(C).NO.857/2015

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6. SURAJA KUMARI @ SUPRABHA, D/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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7. SULAFA,

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D/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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8. SETHU KUMARI (SUMITHRA), D/O.SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 015.

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R1 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 857 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1. A TRUE COPY OF THE COMMON JUDGMENT DATED 25.03.2004 IN O.S.NO.834 OF 1994 AND O.S.NO.853 OF 1995 PASSED BY THE COURT OF THE PRINCIPAL MUNSIFF, KOLLAM.

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EXHIBIT P2. A TRUE COPY OF THE E.A.NO.59 OF 2014 IN E.P.NO.232 OF 2010 IN O.S.NO.834 OF 1994 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, KOLLAM.

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EXHIBIT P3. A TRUE COPY OF THE PLAINT IN O.S.NO.74 OF 2014 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, KOLLAM.

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EXHIBIT P4. A TRUE COPY OF THE ORDER DATED 16.03.2015 IN E.A.NO.59 OF 2014 IN E.P.NO.232 OF 2010 IN O.S.NO.834 OF 1994 OF THE PRINCIPAL MUNSIFF COURT, KOLLAM.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.ABRAHAM MATHEW, J.

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

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O.P(C) No.857 of 2015

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

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Dated this the 8^th day of February, 2016

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JUDGMENT

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This original petition arises from an order passed in E.P No.232 of 2010 in O.S No.834 of 1994 of Munsiff Court, Kollam. Respondents 2 to 8 in this original petition were the defendants. The plaintiffs claimed ownership and possession of 1 acre 3 cents. Respondents 2 to 8 apparently were the owners of the adjoining property. The suit was for fixation of boundary. Respondents 2 to 8 filed O.S No.853 of 1995 against the first respondent for a perpetual injunction. Subsequently, Sadasivan and Omana were impleaded as additional defendants in that suit. It was revealed that pending O.S No.834 of 1994 Sadasivan and Omana transferred 48 cents to the first respondent. So he was impleaded as additional 3^rd plaintiff in O.S No.834 of 1994. Both suits were tried together. O.S No.934 of 1994 was decreed and O.S No.853 of 1995 was dismissed. There were appeals. The decrees of the trial court have become final. Pending the appeals, Sadasivan allegedly executed a will bequeathing the above mentioned 1 acre 3 cents to the petitioner in this original

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O.P.(C) No.857/2015

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petition. Sadasivan died after the disposal of the appeals. The first respondent filed E.P No.232 of 2010 in O.S No.834 of 1994. The petitioner in this original petition filed E.A No.59 of 2014 for a declaration that the first respondent has no right to execute the decree. This has been dismissed by the executing court by the impugned order. Its correctness is challenged.

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Heard.

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Admittedly, the first respondent is a decree holder. The petitioner in this original petition cannot maintain an application to declare that he is not entitled to execute the decree. Even if it is assumed that the petitioner has obtained title to the property which was in the ownership of Sadasivan, his remedy is not to file an execution application for a declaration that the first respondent has no right to execute the decree. In this view of the matter, the order of the executing court is not liable to be set aside.

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It is alleged that only 48 cents covered by the title deed of the first respondent adjoins the property of respondents 2 to 8, who are the judgment debtors. This is a matter to be decided by the executing court before the decree is executed. If the

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O.P.(C) No.857/2015

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petitioner in this original petition has any other grievance, he may take appropriate action. If the petitioner has a contention that he is the present owner of the property which belonged to Sadasivan and it is that property that adjoins the property of respondents 2

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to 8, he may file proper application before the executing court.

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The lower court dismissed the application on the ground that the petitioner in this original petition has filed a suit for a declaration of his title to the entire 1 acre 3 cents and that the document in favour of the first respondent is a sham one. This is a matter beyond the scope of execution proceedings. The executing court need not have taken this into account at all.

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In the result, this original petition is dismissed.

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Sd/K.ABRAHAM MATHEW, JUDGE

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vdv/08/02/16

Godavarma v. Ajayakhosh

Case brief

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Godavarma v. Ajayakhosh

Case brief

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