In property disputes, the burden of proof lies with the claimant to demonstrate their rights in relation to the decree-holder's property.

JUDGMENT

This appeal arises out of the concurrent findings by the Courts below in a claim petition filed by the appellant. In a suit for recovery of money, when the decree holder filed E.P. No. 407 of 2006 in O.S. No. 294 of 1998 before the Principal Sub Court, Irinjalakuda, the claim petitioner/appellant herein filed the application under Order 21 Rule 58 read with Rule 97 and Section 47 of the Code of Civil Procedure, 1908 , contending that she had obtained the property by an assignment deed. It is further contended that the property now sought to be attached to the debt of the 2^nd respondent (judgment debtor) absolutely belongs to her and, therefore, there is no right or interest.

1.1. Pending the application, no steps were taken for identification of the property. But, subsequently, in the year 2011, an application for appointment of an Advocate Commissioner was preferred to identify the property with the aid of the Village Officer and to call for a plan in respect of the petition schedule property. The said applications were dismissed. The Executing Court found that the claim of the appellant could be sustained through documentary evidence and that the application for appointment of an Advocate Commissioner was only to delay and protract the proceedings. Aggrieved, the appellant filed A.S. No. 190 of 2011 before the Addl. District Court – IV, Thrissur, and by judgment dated 17.03.2015, the appeal was dismissed and against the same the present appeal is preferred.

2. On 18.03.2016, this Court admitted the appeal and issued notice to the respondents on the substantial questions of law framed in the memorandum of appeal.

3. Heard Sri. M. A. Zohra, the learned Counsel for the appellant and Sri. G. Sreekumar (Chelur), the learned Counsel for the 1st respondent and Sri. K.G. Balasubramanian, the learned Counsel for the 2^nd respondent.

4. On considering the submissions raised across the Bar, this Court is of the view that no substantial question of law arises for consideration in the present appeal inasmuch as no material irregularity or infirmity has been pointed out in the judgment/order impugned in this appeal. The application now filed is for appointment of an Advocate Commissioner after the claim petition was reserved for orders. This Court cannot remain oblivious of the fact that the suit is of the year 1998 and the decree was passed in the year 2002 and the execution petition was filed in the year 2006. For nearly 20 years, the decree holder has not been able to put the decree for execution.

5. It is trite law that in a claim petition under Order 21 Rule 97 of the Code of Civil Procedure, 1908 , it is for the claim petitioner to establish the case pleaded that the decree schedule property and the property held by him are entirely different. If the appellant/claimant was diligent enough and was interestingly prosecuting the matter with due diligence, she would have certainly filed an application for appointment of an Advocate Commissioner at that point of time when the execution application was filed. The delay of nearly two years in filing the application tells upon the bona fides of the appellant. In such circumstances, this Court is of the view that there is no infirmity in the orders rendered by the Courts below.

Resultantly, this appeal is dismissed holding that no substantial questions of law arise for consideration.