Allowed

Shanmughasundaram v. Kalavathy @ Kannamma

Kerala HC16 Mar 2017CRP/397/2013

Case brief

AI extract

What is this about?

This Civil Revision Petition challenged the dismissal of an execution petition for eviction due to limitation. The Court held that since the decree was for surrender of vacant possession of immovable property, Article 136 of the Limitation Act applies, not Article 135. The lower court order was set aside, and the execution petition was restored.

What did the court decide?

The order of the lower court was set aside. The execution petition was restored to file to be proceeded with in accordance with law.

Shanmughasundaram Vs Kalavathy @ Kannamma — Execution and Attachment | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938

¶5

CRP.No. 397 of 2013 (C)

¶6

AGAINST THE ORDER DATED 13.2.2013 IN E.P.NO.352/2012 IN O.S.NO.446/2005 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, PALAKKAD.

¶7

REVISION PETITIONER/DECREE HOLDER/PLAINTIFF:

¶8

SHANMUGHASUNDARAM

¶9

S/O. V.K.MARUTHACHALA GOWDER, "VIJAYASREE", NEAR SIVA TEMPLE, CHOKKANTHAPURAM, PALAKKAD-5.

¶10

BY ADVS.SRI.K.NARAYANAN (PARUR)

¶11

SRI.ALUNKAL GEORGE

¶12

RESPONDENTS/JUDGMENT DEBTORS/DEFENDANTS:

¶13

KALAVATHY @ KANNAMMA W/O.PERIYASWAMY, 32/35, CHUNNAMBUTHARA, PALAKKAD - 12.

¶14

V.M. KRISHNAMOORTHY S/O.V.K.MARUTHACHALA GOWDER, 32/35, CHUNNAMBUTHARA, PALAKKAD - 12.

¶15

NANDAKUMAR, S/O.PERIYASWAMY 32/35, CHUNNAMBUTHARA, PALAKKAD - 12.

¶16

RAJESHKUMAR S/O.PERIYASWAMY, 32/35, CHUNNAMBUTHARA, PALAKKAD - 12.

¶17

ARAVINDKUMAR S/O.PERIYASWAMY, 32/35, CHUNNAMBUTHARA, PALAKKAD - 12.

¶18

R1,R2,R3 & R5 BY ADV. SRI.RAJESH SIVARAMANKUTTY

¶19

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.03.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶20

P. Somarajan, J.

¶21

C.R.P. No.397 of 2013 (C)

¶22

Dated this the 16^th day of March, 2017

¶23

O R D E R

¶24

The challenge in this revision is against the dismissal of E.P.No.352 of 2012 in O.S.No.446 of 2005 by the Principal Munsiff's Court, Palakkad by its order dated 13.2.2013.

¶25

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

¶26

A decree of mandatory injunction in O.S.No.446 of 2005 put in execution by the decree holder in E.P.No.352 of 2012. It has ended in dismissal by the order dated 13.2.2013 by the Principal Munsiff's Court, Palakkad on the ground that the execution petition is barred by limitation. The time available for executing a decree of mandatory injunction is three years as per Article 135 of the Limitation Act. The operative portion of the decree is extracted below for reference:

¶27

C.R.P. No.397 of 2013 (C)

¶28

:: 2 ::

¶29

“a) That the suit be and the same is hereby decreed in part.

¶30

b) That a decree of mandatory injunction is granted directing defendants to quit the premises and to surrender vacant possession to the plaintiff within 60 days from today. Failing which it open for the plaintiff to approach this court to get the decree executed.

¶31

c) That first defendant is directed to pay a sum of Rs.2000/- per month from the date of suit till the date of surrendering vacant possession to the plaintiff as compensation for use and occupation.

¶32

d) And that there be no order as to costs.”

¶33

4. A mere perusal of the abovesaid decree would show that it

¶34

is not at all a decree granted by the lower court for mandatory injunction but it is a decree of eviction directing the defendants to quit the premises and to surrender vacant possession to the plaintiff within sixty days from the date of the decree. A serious error crept in the decree granting the order of eviction. The nomenclature alone will not show the actual nature of the decree granted. In substance, what is granted is a decree for eviction directing the defendants to quit the premises and to surrender vacant possession to the plaintiff.

¶35

C.R.P. No.397 of 2013 (C)

¶36

:: 3 ::

¶37

The property involved in the suit is a landed property and the house situated therein was in occupation of the defendants. So, the relevant article applicable is not Article 135 of the Limitation Act. Hence, the execution petition is within time. The order of the lower court is, therefore, liable to be intercepted as there is an apparent error on the face of records.

¶38

The order of the lower court is hereby set aside. The execution petition is restored to file. The lower court is hereby directed to proceed with the execution petition in accordance with law. The civil revision petition is allowed as above, but without any order as to costs. The parties shall appear before the lower court on 29.3.2017.

¶39

P. Somarajan Judge

¶40

ahz/

Shanmughasundaram v. Kalavathy @ Kannamma

Case brief

What is this about?

What did the court decide?

Shanmughasundaram v. Kalavathy @ Kannamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gopalakrishnan Nair Vs Vasudevan Nair

A.P.Velayudhan Vs Akbar Ali

Muhammedkutty Vs Ali

M/S.Sundaram Finance Ltd. Vs Baiju P.P.

Suresh Vs Sreenarayana

Vilasini Vs Unni