Allowed

Kuttiyamma Joseph v. Nidiyirikkal Thomas @ Olikkal Puthan Purayil Thomas

Kerala HC6 Aug 2019FAO (RO)/199/2017

Case brief

AI extract

What is this about?

Appeals against a remand order regarding removal of obstruction in execution proceedings under Order XXI Rule 97 CPC, involving rival title claims and property identification. The High Court allowed appeals, setting aside the remand order.

What did the court decide?

Remand dated 30.11.16 set aside; District Court directed to re-hear appeal and pass fresh orders after evaluating entire materials on record.

Kuttiyamma Joseph Vs Nidiyirikkal Thomas @ Olikkal… — Execution and Attachment | Kerala HC (2019)

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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 SATHISH NINAN

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TUESDAY, THE 6TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941

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FAO (RO).No.83 OF 2017

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IN THE MATTER OF JUDGMENT DATED 30.11.2016 IN AS NO.8 OF 2016 ON THE FILE OF ADDITIONAL DISTRICT COURT-III, THALASSERY, ARISING FROM THE ORDER DATED 15.12.2015 IN EA 240/1989 IN EP NO.52/1978 IN OS 109/1961 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA

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APPELLANTS/APPELLANTS/RESPONDENTS IN EA 240/1989:

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1 NIDHIYIRIKKAL THOMAS @ OLIKKAL PUTHANPURAYIL THOMAS, S/O.MATHAYI, AGED 87 YEARS, NIDHIYIRIKKALHOUSE, AYYAMKUNNU AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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2 CHINNAMMA THOMAS, W/O.THOMAS, AGED 78 YEARS, NIDHIYIRIKKALHOUSE,AYYAMKUNNU AMSOM DESOM, IRITTYTALUK,KANNUR DISTRICT, PIN-670706.

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3 JAISON THOMAS, S/O.THOMAS, AGED 54 YEARS, WORKING AS GENERAL MANAGER, MITCO, KANNUR, RESIDING AT NIDHIRIKKAL HOUSE, OPPOSITE UNION BANK, CHOVVA, KANNUR, PIN-670006, KANNUR DISTRICT.

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FAO (RO).No.83 OF 2017

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-: 2 :-

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4 IVAN THOMAS, S/O.THOMAS, AGED 50 YEARS, ENGINEER, NIDHIYIRIKKAL HOUSE,AYYAMKUNNU AMSOM DESOM, IRITTY TALUK,KANNUR DISTRICT, PIN-670706.

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5 SANJAY THOMAS,

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S/O.THOMAS, AGED 52 YEARS, LIC DEVELOPMENT OFFICER, NIDHIYIRIKKAL HOUSE, AYYAMKUNNU AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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BY ADV. SRI.R.SURENDRAN

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RESPONDENTS/RESPONDENTS/PETITIONERS IN EA 240/1989:

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MANNAPARAMBIL MARIYAM [DIED]

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1 KUTTIYAMMA JOSEPH, D/O.MARIYAM, AGED 77 YEARS, NO OCCUPATION, RESIDING AT WARD NO.3 OF AYYAMKUNNU PANCHAYATH, AYYAMKUNNU AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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2 P.J.JOSEPH, S/O.MARIYAM, AGED 72 YEARS, RETIRED TEACHER, RESIDING AT WARD NO.3 OF AYYAMKUNNUPANCHAYATH, AYYAMKUNNU AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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3 P.J.GEORGE, S/O.MARIYAM, AGED 64 YEARS, BUSINESS, RESIDING AT WARD NO.3 OF AYYAMKUNNU -PANCHAYATH,AYYAMKUNNU AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT,PIN-670706.

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FAO (RO).No.83 OF 2017

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-: 3 :-

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4 SUNNY JOSEPH, S/O.MARIYAM, AGED 61 YEARS, RETIRED BANKCLERK, RESIDING AT WARD NO.3 OF AYYAMKUNNU PANCHAYATH,AYYAMKUNNU AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT,PIN-670706.

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BY ADVS. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.NIAS MOOPAN SRI.K.V.PAVITHRAN SRI.P.SAJU SRI.E.M.UNNIKRISHNAN (MANJERI)

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER - HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH FAO (RO).199/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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 SATHISH NINAN

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TUESDAY, THE 6TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941

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FAO (RO).No.199 OF 2017

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AGAINST THE ORDER IN EA NO.240/89 IN EP NO.52/78 IN OS NO.109/61 ON THE FILE OF THE MUNSIFF'S COURT, KUTHUPARAMBA DATED 15.12.15 IN AS 8/16 OF ADDL. DISTRICT COURT -III, THALASSERI DATED 30.11.16

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APPELLANTS/RESPONDENTS/PETITIONERS:

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1 KUTTIYAMMA JOSEPH, D/O. MARIYAM, AGED 76 YEARS, NO OCCUPATION, RESIDING AT WARD NO.3 OF AYYAMKUNNU PANCHAYATH, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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2 P. J. JOSEPH, S/O. MARIYAM, AGED 71 YEARS, RETIRED TEACHER, RESIDING AT WARD NO.3 OF AYYAMKUNNU PANCHAYATH, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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3 P. J. GEORGE, S/O. MARIYAM, AGED 63 YEARS, BUSINESS, RESIDING AT WARD NO.3 OF AYYAMKUNNU PANCHAYATH, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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4 SUNNY JOSEPH, S/O. MARIYAM, AGED 60 YEARS, RETIRED BANK CLERK, RESIDING AT WARD NO.3 OF AYYAMKUNNU PANCHAYATH, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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BY ADVS.

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SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.NIAS MOOPAN SRI.P.SAJU SRI.E.M.UNNIKRISHNAN (MANJERI)

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FAO (RO).No.199 OF 2017

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-2-

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RESPONDENTS/APPELLANTS/RESPONDENTS:

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1 NIDHIYIRIKKAL THOMAS @ OLIKKAL PUTHANPURAYIL THOMAS, S/O. MATHAYI, AGED 86 YEARS, NIDHIYIRIKKAL HOUSE, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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2 CHINNAMMA THOMAS, W/O. THOMAS, AGED 77 YEARS, NIDHIYIRIKKAL HOUSE, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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3 JAISON THOMAS, S/O. THOMAS, AGED 53 YEARS, WORKING AS GENERAL MANAGER, MITCO, KANNUR, NIDHIYIRIKKAL HOUSE, OPPOSITE UNION BANK, CHOVVA, KANNUR-670006, KANNUR DISTRICT, PIN-670706.

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4 IVAN THOMAS, S/O. THOMAS, AGED 49 YEARS, ENGINEER, NIDHIYIRIKKAL HOUSE, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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5 SANJAY THOMAS,

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S/O. THOMAS, AGED 51 YEARS, LIC DEVELOPMENT OFFICER, NIDHIYIRIKKAL HOUSE, AYYAMKUNNU AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670706.

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BY ADVS.

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SRI.R.SURENDRAN - R1 TO R3 & R5 KUM.S.MAYUKHA - R1 TO R3 & R5 SRI.R.SURENDRAN - R5

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER - HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH FAO (RO).83/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = FAO (RO) Nos.83 & 199 of 2017 = = = = = = = = = = = = = = = = = = Dated this the 6^th day of August, 2019

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J U D G M E N T

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These appeals arise from a proceeding under Order XXI Rule 97 of the Code of Civil Procedure. The application was allowed by the trial court. On appeal, the order was set aside and remanded. Aggrieved thereby, both the obstructor and the decree holder have filed the respective appeals.

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Heard learned counsel on either sides.

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The suit OS 109/1961, for recovery of

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possession on the strength of title, though was dismissed by the trial court, was decreed in appeal. In execution, the delivery was obstructed by a third party to the decree (obstructor). The court posted the execution petition for taking steps for removal of obstruction. The decree holder filed EA 52/80 to implead the obstructor as an additional judgment debtor. The application though allowed by the execution court, the order was set aside by this Court in CRP 2046/1985. Thereafter,

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FAO (RO) Nos.83 & 199 of 2017

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:- 2 :-

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the decree holder again sought for delivery of the property. On 04.09.89, the execution court ordered delivery of the property. Since the delivery was obstructed, the decree holder on 21.10.1989 filed EA 240/89 under Order XXI Rule 97 CPC seeking removal of obstruction. The said application was allowed by the execution court. On appeal, the order was set aside and the matter remitted to the execution court for adjudication on the rival title claimed by the obstructor and for identification of the property.

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Heard learned counsel on either sides on the question of law as to whether the appellate court failed in its duty to exercise the jurisdiction vested in it to consider and reappreciate the evidence on record before setting aside the order assailed in appeal.

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The issues that arises for determination are : (1) Whether EA 240/89 under Order XXI Rule 97 CPC is barred by limitation; (2) Whether the decree schedule property has been correctly identified;

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FAO (RO) Nos.83 & 199 of 2017

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:- 3 :-

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and (3) Finding on the rival claim of title. As regards limitation, the appellate court found that application is well within the time. As regards the issues of title and identification, the appellate court observed that since the obstructor claims title under a purchase certificate, the title claimed by the obstructor is to be looked into and that the property is to be identified.

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A reading of the judgment impugned reveals that the evidence on record based on which the execution court entered into a finding, was not considered or re-appreciated by the appellate court. The appellate court did not find whether the evidence on record is sufficient enough to determine the question of title. The appellate court ought to have considered as to whether the evidence on record is sufficient enough to enter a finding on the issue of title.

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So also it appears that, in the execution proceedings a Commissioner was deputed with the assistance of a Surveyor to identify the decree

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FAO (RO) Nos.83 & 199 of 2017 :- 4 :-

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schedule property and that a plan was prepared. It is also seen that during the trial stage a Commissioner's plan was prepared, and that the identification made in the execution proceedings was with reference to the said plan also. The appellate court has not considered as to whether the identification done in the execution proceedings which has been accepted by the execution court, is correct and acceptable. Without considering the above aspects, the appellate court could not have remanded the matter for a fresh disposal.

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Though arguments have been advanced by both sides regarding the issue of limitation, since I propose to direct the appellate court to re-hear the appeal and pass fresh orders I deem it appropriate that the entire issues including the question of limitation also be considered by the court. However, I make it clear that I have not expressed any opinion either way, on the correctness of the finding on limitation.

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FAO (RO) Nos.83 & 199 of 2017 :- 5 :-

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In the result, these appeals are allowed. The order of remand dated 30.11.16 is set aside. The District Court shall re-hear the appeal and pass fresh orders after evaluating the entire materials available on record. Considering the fact that the suit from which this proceedings arise is of the year 1961, I am sure that every endeavour will be made by the court to have the appeal heard and disposed of expeditiously. Parties to appear before the District Court on 04.09.2019.

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Sd/-

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SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Kuttiyamma Joseph v. Nidiyirikkal Thomas @ Olikkal Puthan Purayil Thomas

Case brief

What is this about?

What did the court decide?

Kuttiyamma Joseph v. Nidiyirikkal Thomas @ Olikkal Puthan Purayil Thomas

Case brief

What is this about?

What did the court decide?

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