The Kerala High Court set aside the dismissal of an execution application. It held that Rule 22 notice is not required as the petition was filed within two years of the decree. The petition was remanded for fresh orders.
Impugned order in E.A. No.471/2018 set aside; court below to pass fresh orders on the execution application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SATHISH NINAN
WEDNESDAY, THE 16TH DAY OF JANUARY 2019/26TH POUSHA, 1940
O.P.(C)No.75 of 2019
(AGAINST THE ORDER IN E.A.No.471/2018 IN E.P.No.256/2018 OF MUNSIFF COURT, THALASSERY DATED 30-11-2018)
PETITIONERS/PETITIONERS IN FDIA:
1 P.DAMODARAN, AGED 62 YEARS, S/O. JANAKI AMMA, RESIDING AT UNHIKANDIYIL HOUSE, MAKRERI AMSOM, MUNDALOORE DESOM, KANNUR TALUK,, KANNUR DISTRICT.
2 BHAVANI, AGED 53 YEARS D/O. NANI AMMA, UNHIKANDIYIL HOUSE, MAKRERI AMSOM KAVINMOOLA, MANANTHERI ASMOM, DESOM, KANNUR TALUK, KANNUR DISTRICT.
BY ADVS. SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR
RESPONDENTS/RESPONDENTS IN FDIA:
1 K.C.KOMALAVALLY, D/O. KADALA CHIRUKANDOTH DEVAKI AMMA, MAKRERI AMSOM, MUNDALOORE DESOM, KANNUR TALUK, KANNUR DISTRICT-670 622.
2 K.C. SUKUMARI, D/O. KADALA CHIRUKANDOTH DEVAKI KUTTY AMMA, MAKRERI AMSOM, MUNDALOOR DESOM, THALASSERY TALUK-670 622.
3 K.C. VALSALAN, S/O. LATE KADALA CHIRUKANDOTH DEVAKIKUTTY AMMA, MAKRERI AMSOM, MUNDALOOR DESOM, THALASSERY TALUK-670 622.
2
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| 13 | THRIVENI, AGED 49 YEARS, |
|---|---|
| C/O. K.K. SREEDEVI, MANANTHERI AMSOM, DESOM, P.O., MANANTHERI, VIA., KUTHUPARAMBA, KANNUR-670 650. |
|
| 14 | RAJESH, S/O. AMAVATHI, MANATHERI AMSOM, DESOM, P.O., MANANTHERI, VIA KUTHUPARAMBA, KANNUR-670 650. |
| 15 | M. VIJAYALAKSHMI, AGED 64 YEARS, W/O. LATE PHALGUNAN, RESIDING AT NITTUKOMATH HOUSE, P.O., MUNDALUR, MAKRERI AMSOM, KANNUR-670 622. |
| 16 | SHIBU, AGED 38 YEARS, S/O. PHALGUNAN, RESIDING AT NITTUKOMATH HOUSE, P.O., MUNDALUR, MAKRERI AMSOM, KANNUR-670 622. |
| 17 | M. SHEENA, AGED 34 YEARS, D/O. PHALGUNAN, RESIDING AT NITTUKOMATH HOUSE, P.O., MUNDALUR, MAKRERI AMSOM, KANNUR-670 622. |
| 18 | SHIMNA, AGED 34 YEARS, D/O. PHALGUNAN, RESIDING AT NITTUKOMATH HOUSE, P.O., MUNDALUR, MAKRERI AMSOM, KANNUR-670 622. |
| 19 | M. SHIJI., AGED 33 YEARS, S/O. PHALGUNAN, RESIDING AT NITTUKOMATH HOUSE, P.O., MUNDALUR, MAKRERI AMSOM, KANNUR-670 622. |
| 20 | K.C. ASHOKAN, AGED 58 YEARS, S/O. BALAKRISHNAN NAMBIAR, AGRICULTURIST, RESIDING AT KANDOTH HOUSE, |
| P.O., MANANTHERI, VIA., | |
| KUTHUPARAMBA, KANNUR-670 650. |
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28 NARAYANI, AGED 68 YEARS, W/O. PIRATIALAN BALARAMAN, RETD., TEACHER, CHALUPPARAMBATH HOUSE, MAKRERI AMSOM, MUNDALOOR DESOM, KANNUR DISTRICT-670 622. 29 PIRATIALEN KOMALAVALLY, AGED 58 YEARS, D/O. LATE JANAKI AMMA, CHELUPARAMBATH HOUSE, MAKRERI AMSOM, MUNDALOOR DESOM, KANNUR-670 622.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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JUDGMENT
Defendant Nos.2 and 4 in Execution Application No.471/2018 in E.P.No.256/2018 on the files of the Munsiff Court, Thalassery are the petitioners. They are seeking execution of the final decree in a suit for partition. They filed an application as E.A.No.471/2018, seeking to dispense with the issuance of notice to the respondents in execution petition and to effect delivery. As per the impugned order, the said application was dismissed.
The final decree was passed on 10.11.2017. The execution petition is filed within two years. In terms of Rule 22 of the Code of Civil Procedure, notice to showcause against the petitioner is contemplated only
when the application for execution is made
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more than two years after the date of decree. In view thereof, there is no necessity to issue Rule 22 notice in the execution petition. As noticed, the suit for partition is of the year 1992. The property in question is stated to be a barren land (paramba), which is not exclusively occupied by any person. The property sought to be delivered over is, stated to be the one allotted to the petitioners. There are so many respondents and issuance of notice to them will consume time. No such notice is contemplated under the CPC, is the contention. The court below shall consider the above matters and pass fresh orders on the application.
In the result, the impugned order dated 13.11.2018 in E.A.No.471/2018 is set aside. The court below shall pass fresh orders on the execution application considering the above.
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The Original Petition is disposed of
accordingly.
Sd/-
SATHISH NINAN
JUDGE
ss
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE FINAL DECREE PASSED IN I.A. NO. 2473/2012 IN O.S. NO. 200/1992 DATED 10.11.2017 OF THE MUNSIFF COURT, THALASSERY EXHIBIT P2 TRUE COPY OF THE E.P. NO. 256/2018 I.A. NO. 2473/2012 IN OS. NO. 200/1992 FILED BEFORE THE MUNSIFF COURT, THALASSERY EXHIBIT P3 TRUE COPY OF E.A. NO. 471/2018 FILED IN E.P. NO. 256/2018 I.A. NO. 2473/2012 IN O.S.NO. 200/1992 FILED BEFORE THE MUNSIFF COURT, THALASSERY EXHIBIT P4 PHOTO COPY OF THE ORDER PASSED IN E.A. NO. 471/2018 IN E.P. NO. 256/2018 I.A. NO. 2473/2012 IN OS. NO. 200/1992 OF THE MUNSIFF COURT, THALASSERY DATED 30.11.2018 EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OPC NO. 358/2013 OF THIS COURT DATED 28.1.2013
2 issues framed by the court
Whether a Rule 22 notice is necessary in an execution petition filed less than two years after the decree.
Whether notice should be issued to respondents for execution of a partition decree regarding barren land.
P.DAMODARAN
K.C.KOMALAVALLY
K.C. SUKUMARI
SATHISH NINAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
