IMPORTANT POINTS
(1) Execution of decree – A third party to decree has right to approach Court even after dispossession of immovable property, which he was occupying – Term “Stranger” would cover within its ambit, a pendent lite transferee, who has not been impleaded – Pendente lite purchaser has every right to defend his right, title, interest and possession.
(2) Execution of decree – Once application under Order 21 Rule 99 is filed, it is incumbent upon Trial Court to consider all rival claims including right title and interest of parties under Order 21 Rule 101 of CPC which bars a separate suit by mandating execution court to decide dispute.

JUDGMENT :

R. Mahadevan, J.

Heard Mr. Sanand Ramakrishnan, learned counsel for the appellants and Mrs. Nishe Rajen Shonker, learned counsel for the Respondent.

2. These Civil Appeals are preferred against the judgment and order dated 11.11.2011 passed by the High Court of Kerala at Ernakulam,¹[Hereinafter shortly referred to as “the High Court”] in E.F.A Nos.6 and 7 of 1998, whereby, the High Court allowed the said appeals and remanded the matter to the trial Court for fresh consideration.

3. Succinctly stated facts are that the appellants are the legal representatives of the original plaintiff / decree holder viz., Padmakshy (deceased), who had filed a suit in O.S.No.38 of 1956 before the Sub Court, Parur, for partition and separate possession of her share in the plaint schedule 13 items of immovable properties. The Sub Court, Parur, passed a preliminary decree on 23.10.1958. Subsequently, the said suit was transferred to the file of the Additional District Court, Parur and re-numbered as O.S.No.82 of 1960, in which, a final decree was passed on 09.03.1970.

4. The dispute revolved around is qua item no.4 of the plaint schedule property measuring an extent of 1 acre 57 cents in Sy.No.120/10 situated at Muppathepadam Kara, Kodungallur Village, Paravur Taluk, Kerala, which originally belonged to one Ayyapan, who had eight children. In the year 1085 M.E.,²[Malayalam Era or the Malayalam Calendar. To get the corresponding year on the Gregorian Calendar, add 826 which makes it 1911.] the said Ayyappan executed a mortgage in favour of one Kunjan and created a further mortgage in favour of the same mortgagee in the year 1093 M.E.,³[Gregorian Calendar year 1919] On the death of Ayyappan, his six children assigned their 6/8 shares in favour of one Raghuthaman, by gift deed No. 2147 dated 17.07.1963 and the remaining 2/8 shares were obtained by the Defendant No.1, by name, Padmanabhan, as per the deed No.1491 of 1119 M.E.,⁴[Gregorian Calendar year 1945] On the death of the mortgagee Kunjan, his rights devolved on the Defendant No.1 and the original plaintiff Padmakshy (who was a minor at that time). The Defendant No.1, without the concurrence of Padmakshy, executed a mortgage for Rs.1,000/- in favour of one Nanu, in the year 1123 M.E.,⁵[Gregorian Calendar year 1949] and the said Nanu, in turn, assigned his right to the Defendant No.10, by name, Veeran, as per deed No.101 of 1951. As per document No.3669 of 1964, the Defendant No.10 assigned his right to the said Raghuthaman.

5. In the final decree proceedings, qua item no.4, based on the Advocate Commissioner’s report, the plaintiff was allotted one half portion of the property in Sy.No.120/10 i.e., red shaded portion in Ex.C2 plan; and the Defendant No.10 was directed to pay a sum of Rs.461.67 towards equalisation and also mesne profit at the rate of Rs.64.80 per year to the plaintiff. The final decree was engrossed on the requisite stamp paper on 19.11.1990. To execute the same, the plaintiff preferred an Execution Petition bearing No.4 of 1991, in which, notice was ordered to the defendants / judgment debtors, but, they did not turn up. Ultimately, the Executing Court ordered delivery of possession and accordingly, a portion of item no.4 plaint schedule property, as shown in Ex.C2 plan, was delivered to the plaintiff on 22.11.1994.

6. Thereafter, the aforesaid Raghuthaman preferred E.A.No.1 of 1995 in E.P. No.4 of 1991under Order XXI Rule 99 of the Civil Procedure Code,⁶[For short, “CPC”] for redelivery of the property mentioned in Ex.C2 plan, claiming independent right, title and interest in the same. Along with this application, he also filed E.A.No.2 of 1995 seeking an order of injunction restraining the plaintiff from committing waste till the disposal of EA No.1 of 1995; and E.A.No.3 of 1995 for recovery of damages to the tune of Rs.25,000/- from the plaintiff for having committed waste in the property. All the three applications were jointly heard and were dismissed, by a common order