JUDGMENT

This Execution Second Appeal has been directed against the judgment in A.S.No.84/2003 on the file of Sub Court, Neyyattinkara which arose out of order in E.A.No.110/2001 in E.P.No.69/2000 in O.S.No.595/1986 on the file of II Additional Munsiff's Court, Neyyattinkara.

2. Appellant is the son of 16th judgment debtor and filed petition under Order 21 Rule 99 read with Section 151 CPC. The commissioner appointed to fix the boundaries of the decree schedule property visited the petition schedule property for executing the order. No decree has been obtained with respect to the petition schedule property having an extent of 10½ cents. It was not taken delivery by the decree holders. The tenancy right pertaining to the petition schedule property was released by the tenants in favour of the mother of the petitioner, the 16th judgment debtor in the year 1118 ME. The mother of the petitioner executed a settlement deed in favour of the petitioner and his brother as per document No.596/2000 and accordingly they obtained right and possession over that property. Mother also executed a sale deed in favour of father in the year 1997 with respect to a portion of petition schedule property. After the death of father the property devolved upon the mother, the petitioner, as well as the brother. The mortgage right pertaining to the petition schedule property is also released as per document No.58/2000. So according to the petitioner neither the plaintiff nor the defendants in the suit have got any manner of right over the petition schedule property and it was not taken delivery also by the Amin. Under the colour of the delivery list decree holders tried to trespass into the petition schedule property and thereupon the brother of the petitioner filed O.S.No.983/2000 before the First Additional Munsiff's Court, Neyyattinkara and an interim injunction was granted restraining the decree holder from committing waste in the property. But the plot in Ext.C1(d) plan and the petition schedule property are two different properties. So according to the petitioner he has independent right over the property and hence the petition. 3. The second plaintiff filed objection contending that the petition is not maintainable under Order 21 Rule 99. There is no property as described in the petition in existence. No objection was filed by the petitioner at the time of visit of the commissioner in O.S.No.595/1986. The property covered by document No.11/1118 is oodukkoor. The otti and lease have not been released. Syamala Devi has no janmam right. Syamala Devi and first defendant has no relation and hence she has no right to execute the release deed. The documents relied on by the petitioner are fabricated documents and executant had no right to execute that document. Mother of the petitioner was the 16th defendant in the suit. The petitioner has no right to raise any contention which were not raised by the 16th defendant. Amin delivered the property and decree holders taken delivery of the property also. When the commissioner visited the property, objection was raised. Hence he prayed for dismissal of the petition.

4. PWs 1 to 3 examined and Exts.A1 to A6 marked from the side of the petitioner. Ext.C1 and C1(a) were also marked. The learned Munsiff on evaluating the rival contentions found that as per Ext.A1 the executor obtained the property as per Sale Deed No.58/2000. But at that time the executor already transferred 3.500 cents out of 10.5 cents in favour of her husband as per Ext.A4 alleging that she obtained the property as per document No.5195/1118 by inheritance. The title deed of the executor was not produced to prove from whom she obtained the title over the property. The contradictions in the recitals in Exts.A1 and A4 was further evaluated and finding that the petitioner has not obtained any right with respect to the decree scheduled property, the petition was ultimately dismissed.

5. Against which, the petitioner took up the matter before the Sub Cou