Babu v. Vs S.M.Salim

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
EX.FA NO. 10 OF 2020

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AGAINST THE ORDER IN OS 152/2006 OF PRINCIPAL SUB COURT, ALAPPUZHA APPELLANTS/COUNTER PETITIONER/PLAINTIFFS:

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1BABU V.
AGED 57 YEARS
S/O. VASU, MADATHILPARAMBIL,
STADIUM WARD, VELLAKINAR,
ALAPPUZHA WEST VILLAGE, ALAPPUZHA.
2SREELATHA
AGED 49 YEARS
W/O. BABU, MADATHILPARAMBIL,
STADIUM WARD, VELLAKINAR,
ALAPPUZHA WEST VILLAGE, ALAPPUZHA.
BY ADVS
K.S.HARIHARAPUTHRAN
BHANU THILAK

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RESPONDENT/PETITIONER/DEFENDANT:

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S.M.SALIM
AGED 56 YEARS
S/O. SEYAD MOHAMMED, SRANK HOUSE,
VATTAYAL WARD, ALAPPUZHA MURI,
ALAPPUZHA WEST VILLAGE,
THIRUVAMBADI P.O., ALAPPUZHA DISTRICT.

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BY ADVS.
SRI.M.NARENDRA KUMAR
SHRI.P.S SANDEEP KRISHNAN
SMT.M.J.SAJITHA

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THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON
25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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EX.FA NO. 10 OF 2020

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JUDGMENT

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A decree for specific performance of
contract for sale was granted in favour of
the appellants, who are the plaintiffs in
O.S.No.152/2006. In furtherance of the
decree for specific performance, a sale deed
was executed in favour of the appellants on
18.06.2012. The suit was filed on 29.10.2006
and the decree was passed on 18.06.2008. An
appeal was preferred, which was ended in
dismissal on 17.09.2012. After the execution
of the sale deed, the property was sought to
be delivered by maintaining an application in
I.A.No.902/2012, in which, delivery was
ordered on 13.07.2012. Thereon, the sole
respondent herein filed a suit-O.S.No.79/2013
on 19.02.2013, based on a sale in his favour

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EX.FA NO. 10 OF 2020

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dated 30.04.2010. It is pertaining to some
other property purchased from the very same
judgment debtor in the earlier suit, through
one Sidhique, who obtained the same under a
sale on 07.03.2008, based on which, besides
the institution of the abovesaid suit,
O.S.No.79/2013, an application -I.A No.241/13
was also filed under Order XXI Rule 97 C.P.C.
against the order of delivery and causing
obstruction. The suit - O.S.No.79/2013 was

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decreed and accordingly the earlier
application - IA.No.241/13 filed under Order
XXI Rule 97 C.P.C was closed. Thereon, the
respective respondents herein had preferred
an application, I.A.No.346/2019, obstructing
delivery, which as answered by the trial
court under the impugned order, against
which, the plaintiffs/decree holders came up
in appeal.

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EX.FA NO. 10 OF 2020

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2. It is an admitted case of the decree
holder, who is the appellants herein, in
O.S.No.152/2006 (hereinafter referred to as
the decree holder), that what they have
obtained by virtue of the decree in that suit
is pertaining to 20 cents of property
comprised in Sy.no.460/2/1/5 (Re.Sy.No.
231/1). The trial court by the impugned order
partly allowed the application -I.A.No.346/19
submitted by the respondent in the following
lines:-

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“In the result, in view of my findings on
point No.1, IA 346/19 is allowed in part
and it is declared that the plaintiff in
OS 152/06 is not entitled to get delivery
of the decree schedule property in OS
79/13. But, this order shall not prohibit
the plaintiff in OS 152/06 to get the
delivery of the decree scheduled property
in OS 152/06 after its proper
identification by the revenue officials.
In the facts and circumstances of the
case, there is no order as to costs.”

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EX.FA NO. 10 OF 2020

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3. Only two documents were produced,

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which were marked as Exts.A1 and A2, a carbon
copy of the judgment in O.S.No.79/2013 and a
certified copy of the decree in O.S.No.79/13.
Admittedly,thedecreepassedin
O.S.No.79/13, did not contain any plan
annexed to it. Then the only way of proving
the identity of the property covered by the
decree is the description given in the decree
schedule, which is referred to by the learned
Judge in paragraph 14. After referring the
boundaries and the Survey Numbers of the
property covered by the suit, O.S.No.152/2006
and based on the difference in the boundary,
the learned judge found that these are two
different properties, overlooking the fact
that, these properties are situated in the
very same old Survey Number and the Re-Survey
Number.TheoldSurveyNumberis

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EX.FA NO. 10 OF 2020

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Sy.No.460/2/1/5. The Re-Survey Number of 20
cents covered by O.S.No.152/2006 is 231/1.
The property covered by Exts.A1 and A2
judgment and decree is also comprised in very
same Re.Sy.No.231/1. But by giving an
additional sub division No.13. It would
certainly show that, it will form part of the
sub division No.1, that is to say
Re.Sy.No.231/1.

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4. Necessarily, the court is bound to
identify these two properties before ordering
delivery or granting delivery. The duty

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vested with the court and the jurisdiction to
be exercised cannot be re-delegated to any
revenue officials by giving direction to
identify the property properly. It is
impermissible and cannot be sustained even
for a moment. The court has to identify
these two properties and if it is found

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EX.FA NO. 10 OF 2020

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necessary, can locate the same by using any
method known to the law. It shall not be
delegated to any other officials, including
revenue officials. The jurisdiction vested
with the court has not been exercised in its
correct perspective and as such, the impugned
order will stand set aside by remanding the
matter back to the trial court so as to

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locate and identify these two properties
before ordering delivery, for which the
earlier commission report may also be
referred. While locating the property, the
respective property of acquisition/transfer
shall be located chronologically. It is made
clear that insofar as a suit for specific
performance, the sale deed, if any, executed
would stand revert back to the date of the
suit.

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5. It is made clear that, the decree in

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EX.FA NO. 10 OF 2020

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O.S.79/2013 will stand binding on the parties
unless the same was either set aside or
overruled by any higher court by way of
appeal or otherwise.

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6. The parties shall appear before the
trial court on 10.02.2022 and there will be a
direction to dispose of the matter within a
time schedule of six months from the date of
appearance of the parties.

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The appeal is allowed in part
accordingly. No costs.

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Sd/-

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P.SOMARAJAN JUDGE

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SPV

Babu v. Vs S.M.Salim

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Babu v. Vs S.M.Salim

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