Dismissed

Premachandran Nair v. Priji

Kerala HC24 Jan 2017Ex.SA/1/2014

Case brief

AI extract

What is this about?

The High Court dismissed an execution second appeal filed by a father who obstructed property delivery. The court upheld concurrent findings that the appellant, knowing of proceedings, placed himself in possession and obstructed the decree holder, with no evidence of independent right or title.

What did the court decide?

The second appeal is dismissed. Parties bear respective costs. Interlocutory applications are closed.

Premachandran Nair Vs Priji — Execution and Attachment | Kerala HC (2017)

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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 B.KEMAL PASHA

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TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938

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Ex.SA.No. 1 of 2014 ()

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AS 25/2013 of SUB COURT, ATTINGAL

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E.A.NO.109/2012 IN E.P.NO.36/2011 IN OS 116/2007 of MUNSIFF’S COURT, VARKALA

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APPELLANT/APPELLANT/OBSTRUCTION PETITIONER IN EP AND EA:

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PREMACHANDRAN NAIR, AGED 54 YEARS,

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S/O.RAMAN PILLAI, BABU STORES (PROVISION STORE), CHERUNNIYOOR PANCHAYATH WARD NO.III NO.219 FROM PRAVEEN NIVAS, CHERUNNIYOOR DESOM, THIRUVANANTHAPURAM DISTRICT, PIN - 695 142.

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BY ADVS.SRI.M.RAJENDRAN NAIR SRI.ABRAHAM P.GEORGE

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RESPONDENTS/RESPONDENTS IN AS/RESPONDENTS IN EP AND EA:

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1. PRIJI, AGED 32 YEARS, S/O.VISHNU, RESIDING AT VILAYIL VEEDU, CHIRAYINKIL, DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695 304.

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2. PRAVEEN, AGED 28 YEARS,

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S/O.PREMACHANDRAN NAIR, RESIDING AT PRAVEEN NIVAS, CHERUNNIYOOR DESOM, CHERUNNIYOOR VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695 142.

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BY ADV. SRI.J.JAYAKUMAR

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THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/30/1/17

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B. KEMAL PASHA, J.

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................................................................ Ex.S.A. No. 1 of 2014

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............................................................... Dated this the 24^th day of January, 2017

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J U D G M E N T

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The 3^rd party obstructor in the execution of a decree

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has come up by challenging the judgment of the Subordinate Judge's Court, Attingal, in A.S.No.25/2013. The decree in O.S.No.116/2007 of the Munsiff's Court, Varkala was put in execution through E.P.No.36/2011. When the Amin went to the spot for delivery, it was found that the present appellant was in possession of the shop room, and he obstructed the delivery. The appellant filed E.A.No.109/2012 in the E.P. before the execution court seeking a finding that the appellant was not liable to be evicted through the execution proceedings.

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Ex.S.A. 1 of 2014

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-: 2 :-

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The appellant is none other than the father of the judgment debtor. The decree holder purchased the property through a sale deed of the year 2004 through the Sub Registry office, Varkala. In fact, the appellant is not a third party or a stranger, since he was aware of the entire proceedings against the judgment debtor. According to the decree holder, the judgment debtor had stopped the business in the shop room and left the place without surrendering vacant possession of the building, after placing the appellant in it. Thereafter, the appellant started a provision store in the scheduled building, after the passing of the decree and obtained licence from the local authorities by submitting forged documents.

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Both the execution court and the lower appellate court found that the appellant is not claiming any right over the shop room. The appellant has no case that he was entitled to adverse possession over the building. He has no case that he was a lessee or a licensee in respect of the

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Ex.S.A. 1 of 2014

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-: 3 :-

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building. His only case is that he was in possession of the

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shop room for the last 30 years.

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In fact, the appellant has failed to prove any right,

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title or interest over the decree scheduled property. By merely claiming possession, the appellant cannot obstruct the execution of the decree or the delivery, unless and until such possession crystallizes into some other right. Even the appellant has no case that he has any right in the building. It is evident that the E.A. is clearly collusive, and the appellant being the father of the judgment debtor has clearly colluded with his son to obstruct the delivery. The execution court as well as the lower appellate have made threadbare examination into all the facts and evidence. On going through the same, and also on hearing the learned counsel for the appellant, this Court does not find anything to interfere with the concurrent findings entered by the execution court and the lower appellate court. In fact, the question of law raised for admitting this second appeal does

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Ex.S.A. 1 of 2014

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-: 4 :-

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not clearly emerge in this case. There is no merit in this second appeal and the same is only liable to be dismissed, and I do so.

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In the result, this Second Appeal is dismissed. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Premachandran Nair v. Priji

Case brief

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Premachandran Nair v. Priji

Case brief

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