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2024 Supreme(Online)(KER) 24666
HIGH COURT OF KERALA
C.S. Sudha, J
JAYALAKSHMI – Appellant
Versus
PADMINIDEVI – Respondent
OP(C) 86/2019
G.SREEKUMAR (CHELUR), SRI.K.S.BHARATHAN
The court clarified that execution proceedings cannot re-examine rights already adjudicated in prior judgments, reinforcing the finality of earlier decisions.
Headnote:
Partition - Suit for Partition - Article 227 - Section 47 CPC - The court upheld the final decree of partition, emphasizing that the rights of the parties had been previously adjudicated and that the execution proceedings did not allow for re-examination of those rights.
Fact of the Case:
A suit for partition was filed by a mother and her children claiming shares in a property. The court had previously decreed the partition, allotting shares, but disputes arose regarding the execution of the final decree and the rights of the parties involved.
Finding of the Court:
The court found that the rights of the parties had been conclusively determined in earlier proceedings, and the execution court's orders were valid. The claims made by the second defendant were previously rejected and could not be revisited in execution proceedings.
Issues: Whether the execution court erred in ordering delivery of property without considering the second defendant's claimed rights based on prior orders and whether the petition under Article 227 was maintainable.
Ratio Decidendi: The court held that the execution proceedings could not revisit rights already adjudicated in earlier judgments, and the second defendant's claims had been previously rejected, thus affirming the execution court's orders.
Final Decision: The petition is dismissed.
J U D G M E N T
This original petition under Article 227 of the Constitution of India has been filed challenging Exts.P17 and P18 orders in E.P.369/2013 in O.S.No.655/1991 on the file of the Subordinate Judge's Court, Thrissur. The parties in this petition will be referred to as described in O.S.No.655/1991.
2. O.S.No.655/1991, a suit for partition, was filed by one Narayani Amma and her six children claiming 7/8 share in 21 cents of property and a house situated therein, which belonged to her mother, late Lakshmikutty Amma. The 1st defendant Madhavan Nair, was her brother and defendants 2 and 4, the daughters of the 1st defendant and the 3rd defendant, the husband of the 2nd defendant. In the suit, Ext.A16 settlement deed dated 26/12/1999 was produced as per which the 1st defendant Madhavan Nair claiming to be absolute owner of the entire
21 cents of property settled the same in favour of his two daughters, namely, the 2nd defendant Jayalakshmi and the 4th defendant Padminidevi. The suit was decreed finding that late Lakshmikutty Amma constituted a thavazhi and hence the plaintiffs were entitled to 7/8 share in the property. The balance 1/8 share devolved on the 1st defendant. The preliminary decree has become final. Thereafter, the 2nd plaintiff Karunakaran, filed an application for passing final decree seeking his share of 1/8 to be allotted to him. The 2nd plaintiff claimed his share alone as by that time the 4th defendant Padminidevi, had purchased the share of the other plaintiffs. The 4th defendant on the basis of a Will executed by the 1st defendant claimed that the entire share of the 1st defendant/her father, had been bequeathed to her and thus she obtained 7/8 share in the property.
2.1. Final decree was passed as per Ext.P3 order dated 06/11/2012, by which 'A' schedule property having an extent of 2.600 cents was allotted to the 2nd plaintiff and 'B' schedule having an extent of 18.300 cents was allotted to the 4th defendant. The 2nd defendant Jayalakshmi challenged Ext.P3 order by filing A.S.No.39/2013 before the District Court, Thrissur, which appeal was dismissed. Aggrieved by the dismissal, the 2nd defendant filed second appeal no.754/2015, which also ended in dismissal by Ext.P4 judgment dated 23/02/2016.
2.2. As per Ext.P11 order dated 08/09/2016, delivery of the property as per Ext.P3 final decree to the 4th defendant was ordered. Challenging Ext.P11 order, the 2nd defendant filed O.P. (C).No.2422/2016. This Court by Ext.P12 order dated 07/08/2017 disposed of the petition by holding that the executing court shall effect delivery subject to the right of the 2nd defendant taking into account the fact that the latter was residing in the building in the property. It was further held that the question whether the 1st defendant Madhavan Nair had any right to create a bequest as claimed by the 4th defendant Padminidevi can be decided in appropriate proceedings. The 4th defendant filed a review petition, namely, R.P.No.835/2017 for reviewing Ext.P12 order. This Court by Ext.P14 order dated 12/09/2018 disposed of the petition by holding that there was no bar for the 4th defendant to take delivery of the property and that the question whether the 1st defendant Madhavan Nair had any right to bequest after executing Ext.A16 settlement deed (Ext.B1) was a matter to be decided in appropriate proceedings. Pursuant to the same, the 2nd defendant filed E.A.No.1136/2018 in E.P.No.369/2013 stating that only symbolic delivery could be ordered as she is residing in the building situated in the property and as her right has been recognized in Exts.P12 and P14 orders, delivery could be effected only subject to her right in the property. The execution court by Ext.P17 order dated 15/12/2018 dismissed the petition and by Ext.P18 order directed delivery to be effected. The 2nd defendant has come up challenging Exts.P17 and P18 orders.
3. It was submitted by the learned counsel for the 2nd defendant/petitioner that she is residing in the bu
