Point of Law: Order 21 Rue 23 deals with the procedure to be followed after getting notice under Order 21 Rule 22.

JUDGMENT :

This Original Petition has been filed under Article 227 of the Constitution of India by the 2nd Judgment debtor in E.P.48/2016 in O.S.No.103/96 on the file of the Execution Court/Munsiff Court, Devikulam. The original petitioner urged the following points specifically in the Original Petition to be decided in this case:

(i) Can the execution Court proceed with the delivery of immovable property in a case where Exhibit-P2 decree is an inexecutable one on various aspects.

(ii) Is not the execution Court bound to adjudicate application filed under Section 47 challenging the executability of a decree?

(iii) Can the execution Court by-pass Order 21 Rule 23(2) of the Code of Civil Procedure?

2. Heard the matter in detail.

3. It is contended by the learned counsel for the petitioner, inter alia, that the petitioner suffered decree in O.S.103/1996 and the said decree was confirmed in A.S.No.55/2001 of Sub Court, Thodupuzha. According to the petitioner, though R.S.A.No.32/2004 was filed before this Court challenging the dismissal of A.S.No.55/2001, the same also was dismissed for default. The petitioner would contend further that the plaintiff/decree holder has no title to the schedule property and they have purchased the decree schedule building only during 2005 as borne out from Ext.P5 execution petition. It is submitted further that the Amin noted the number of the building, sought to be evicted, in deviation from the original building number shown in the decree schedule. This Original Petition was moved when delivery was ordered with aid of police, by the execution court to execute the decree passed in a suit of the year 1996.

4. It is not in dispute that the petitioner herein is none other than the 2nd judgment debtor in E.P.No.48/2016 and the 2nd defendant in the O.S.No.103/1996. Ext.P1 is the copy of E.P.No.48/2016 filed by Tata Tea Ltd., presently, Tata Global Beverages Ltd. Ext.P2 is the copy of decree in O.S.No.103/1996 wherein also the plaintiff is Tata Tea Ltd. Comparing Exts.P1 and P2, without much ado, it can be safely concluded that the plaintiff the Tata Tea Ltd. filed execution petition showing the present name of the company as Tata Global Beverages Ltd. Thus the contention raised by the learned counsel for the original petitioner that the decree holder in Ext.P1 E.P.No.48/2016, who is the subsequent purchaser of the property during 2005, has no legs to stand.

5. It is true that in Ext.P3 report of the Amin, it has been stated that, building No.1/647 of Munnar panchayat stated in the decree, could not be found since house No.310 in ward No.5 of Devikulam Panchayat is the number presently affixed in the building. Based on this report, the learned counsel for the petitioner urged that the decree schedule building could not be identified and the decree holder is attempting to get eviction of a building different from the decree schedule item. In Ext.P3 report, Amin stated that delivery could not be effected as 2nd judgment debtor (the petitioner herein) objected the same. In Ext.P3 report the Amin specifically reported further that the decree schedule property was identified based on the boundaries shown by the decree holder in conformity with the decree schedule boundaries and it was thereafter the 2nd judgment debtor was directed to vacate the building. The above report of the Amin would go to show that the property has been identified properly based on the schedule description. But the building situated in the decree schedule property has been reported to be having a different number. I do not think that the number given by Devikulam Panchayat, now Munnar Panchayat, shall be always the same. It is judicially noticeable that the Panchayat would give new numbers to the building on completion of every 5 years and therefore the possibility of maintaining the number assigned during 1996 and 2001 is an outright impossibility. Therefore, the said reason cannot be found in favour of the petitioner to hold that the building