The appellant lacked lawful rights to claim fixity of tenure due to invalid assignments and ongoing litigation affecting the property.

JUDGMENT :

Easwaran S., J.

1. The execution second appeal arises out of concurrent findings rendered by the courts below in an application filed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (CPC).

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The appellant is the claim petitioner under Order XXI Rule 97 of the CPC. The property originally belonged to one Velu as per a ‘Venpatta Adharam’ No.1004/1955 of Mararikulam S.R.O, which was exchanged by him in favour of one G.K.Babu on 02.01.1990 and G.K.Babu thereafter obtained a pattayam from the Cherthala Land Tribunal as Patta No.37/1990. Since Neelakandan Velu was a cultivating tenant, all the rights in the property vested upon him. The respondents filed a suit for redemption of mortgage claiming that the property originally belonged to one Poovan Kuttan and he gave the property on mortgage by a registered document on 21.06.1952 to one Parameswara Kurup and the document is styled as Panayadharam. During the pendency of the mortgage, Poovan Kuttan had created a gift in favour of his nephews. Based on the gift deed, O.S.No.155/1982 was preferred, which was decreed and a redemption of mortgage was granted, which was challenged by Parameswara Kurup before the First Appellate Court and the same reached before this Court and the decree for redemption of mortgage was confirmed. Incidentally, Parameswara Kurup instituted a small causes suit against Poovan Kuttan way back in the year 1955 and it is stated that Parameswara Kurup had obtained a decree based on which the property was sold, and he purchased the property. Later, Parameswara Kurup assigned the mortgage to Velu, who in turn, exchanged the property with G.K.Babu, from whom the appellant is stated to have purchased the property.

2.2. The decree holder resisted the contention by contending that the claim petitioner has no right and possession over the property. Neelakandan Velu had no title over the property and he was never in possession and hence, he had no right to execute any kind of document in respect of the property. The proceedings before the Land Tribunal was taken out during the pendency of O.S.No.155/1982 and therefore, is not binding. In the application before the Land Tribunal the Jenmi was shown as Parameswara Kurup and therefore, the same was collusive in nature. On behalf of the appellant/claim petitioner, Ext.A1 to A7 documents were marked. No documentary evidence on the side of the counter petitioners. Ext.C1 is the report of the Advocate Commissioner and Ext.C1(a) is the plan. No oral evidence was adduced on either side. The Executive Court framed the following issues for consideration:

1. Whether the claim petitioner has any right and title over the decree schedule property?

2. Whether deed No.448/95 is hit by the doctrine of lis – pendens?

3. Whether the decree passed in O.S.No.155/1982 is vitiated by fraud?

4. Whether the decree in O.S.No.155/82 is a void decree?

5. Whether the decree in O.S.No.155/82 is binding on the claim petitioner herein?

6. Reliefs and costs?

2.3. On appreciation of the documentary evidence produced on behalf of the appellant, the Executing Court found that, since the purchase certificate was issued after the filing of the suit and the decree, any transfer effected after filing of the suit is hit by principles of lis pendens. It was further found that since the decree of redemption was affirmed by this Court, it is futile for the claim petitioner to resist the execution of the decree and accordingly, dismissed the claim petition. Aggrieved, the claim petitioner preferred A.S.No.2/2019 and the First Ap