A party excluded from a decree is entitled to challenge dispossession under Order XXI Rule 99, even if they are a judgment debtor, if no executable decree exists against them.

JUDGMENT

The claim petitioners before the Executing Court complaining wrongful delivery of 9.750 cents of property and building therein with well defined boundaries on four sides are before this Court complaining total misappreciation of the facts and law by the Executing Court as well as the First Appellate Court.

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

2.1. Sri. T. K. Seethi and others filed O.S. No. 169 of 1993 before the Sub Court, Alappuzha for declaration of title, recovery of possession and permanent injunction claiming title over 60 cents of land in Sy. No. 548/2 and as shown as 548/1/2 as per sale certificate and delivery kychit in O.S. No. 78/1961 on the files of Sub Court, Alappuzha. In the suit, it was contended that after surrender of 16.25 cents of land, the plaintiffs are in possession of 43.750 cents. The suit was dismissed by the Trial Court by judgment and decree dated 29.06.2002. On appeal, as A.S. No. 112 of 2002, the Additional District Court, Alappuzha allowed the appeal and reversed the judgment and decree dismissing the suit and decreed the suit qua defendants 2, 3, 5 and 6 therein. As far as defendants 1, 4, 7 and 8 were concerned, there was no decree enabling the appellants to do anything in respect of the property occupied by them. The dispute started from the passing of the decree. The other defendants; 2, 3, 5 and 6 challenged the judgment and decree of the First Appellate Court before this Court and the same was subsequently dismissed.

2.2. The plaintiffs/decree holders put the decree in execution and filed E.P. No. 139 of 2007. During the course of the proceedings of the execution, the 8^th defendant died. Subsequently, the appellants were impleaded as additional judgment debtors 11 to 14. E.A. No. 49 of 2011 was filed on 08.07.2011 seeking directions to the decree holders to delete the judgment debtors 11 to 14 from the party array and to direct the decree holders to file a fresh execution petition. The application was taken up for consideration and by order dated 28.05.2014, the Executing Court by order dated 05.03.2010, entered a categoric finding regarding, the absence of any executable decree against the 8^th defendant, held that there is no requirement to file a fresh execution petition. However, the judgment debtors 11 to 14 were deleted from the party array and it was categorically held that the Commissioner has no right to direct eviction of the petitioners from the building site in their possession as there is no decree for the same. Notwithstanding the said order, the decree holders proceeded to execute the decree and the Execution Court obliged the prayer of the decree holders and that an Amine was deputed for delivering the property covered by the decree in A.S. No. 112 of 2002. When the Amin inspected the property, a delivery kychit was drawn along with the report of the Advocate Commissioner wherein both the Amin and the Advocate Commissioner relied on the old sketch prepared during the trial stage in O.S. No. 169 of 1993 and demarcated the building of the claim petitioners and evicted them from the remaining property and handed over the possession of the remaining property to the decree holders. This was done by the Amin and the Advocate Commissioner despite finding that the site of the building is covered with well defined compound walls on four sides with a gate to enter into the property. The Executing Court accepted the report and closed the execution petition. Immediately, an application under Order XXI Rule 99 was lodged by the appellants claiming redelivery of the property. The decree holders resisted the claim by contend