Back
2008 Supreme(Online)(KER) 14646
HIGH COURT OF KERALA
K.PADMANABHAN NAIR, J
SUBRAMANIAN – Appellant
Versus
VIJAYALAKSHMI – Respondent
EFA 19 2000
Important Points
Subject
Civil Law - Property Law
Act Referred
Headnote
Appeal - Execution Proceedings - Code of Civil Procedure - Order XXI Rule 99 - The court emphasizes the importance of accurate property identification and the necessity of adhering to procedural norms in execution applications, especially when discrepancies arise between decrees and actual property descriptions.
Fact of the Case:
Two appeals arise from the dismissal of an execution application under Order XXI Rule 99 of the Code of Civil Procedure, where the appellants, claiming possession of land mistakenly delivered to the decree holder, challenged the execution based on alleged fraud and misidentification of property.
Finding of the Court:
The court found that the executing court failed to properly identify and demarcate the property described in the original decree, emphasizing the need for a commissioner to accurately locate the northern 3 acres intended for delivery.
Issues: The primary issue was whether the property delivered to the decree holder matched the description in the decree, particularly concerning the identity and extent of the land claimed by both parties.
Ratio Decidendi: The court held that execution proceedings must accurately reflect the properties described in the decree, and the appellants, being in possession of properties not covered by the decree, were entitled to re-delivery.
Final Decision: The appeals were allowed; the lower court's orders were set aside, and the cases were remanded for fresh hearings.
SRI.P.V.CHANDRA MOHAN, SRI.P.VIJAYA BHANU, SRI.M.GEORGE THOMAS, SRI.C.A.CHACKO
J U D G M E N T
--------------------
These two appeals arise from a common judgment of the trial court which disposed of three suits and an execution application.
E.F.A. NO.19 OF 2000
2. This appeal arise from an order passed by the Subordinate Judge's Court, Thrissur, dismissing E.A. No.1040 of 1991 in O.S. No.597 of 1979. The application was filed by the appellants, who were strangers to the decree and execution proceedings, under Order XXI Rule 99 of the Code of Civil Procedure for re-delivery of the property which was stated to have been taken delivery from their possession in execution of the decree passed in O.S. No.597 of 1979. The affidavit filed in support of the application contains the following averments. The second applicant is the son of the first applicant. As per the decree passed in O.S. No.597 of
1979 there was a direction to deliver the suit property to the decree holder. The property scheduled in the plaint as well as in the decree is the northern 3 acres of property. First respondent was having an extent of 5.99 acres of land as per document No.1373 of 1978 of the Mundoor Sub Registry Office. Southern portion of the entire property was owned by the appellants and other strangers. First appellant purchased 42.5 cents of land comprised in Sy.No.269/3, 69 cents of land in Sy.No.269/4, 2 cents of land in Sy.No.269/5, 40 cents of land in Sy.No.320/3 and 3 cents of land in Sy.No.270/5. The second appellant along with his brother Udayakumar had purchased 36.6 cents in Sy. No.269/4 and 16.4 cents of land in Sy. No.270/5 and they are in absolute possession of the same. The property purchased by the appellants was not covered by the decree, but the decree holder, playing fraud on the court, had taken delivery of the property which was in the possession of the appellants instead of taking delivery of 3 acres of property on the northern side. A plot of land touching north-south was now taken delivery. Though the actual extent of property comprised in Sy.No.269/1 is 93 cents, in the sale deed executed by the court below, the extent is shown as 1.16 acres. The decree holder is entitled to get delivery of only 3 acres of property on the northern side of the suit property. Though the property is in the actual physical possession of the appellants, in view of the delivery kaichit, it is necessary to order re-delivery of the property. Hence the execution application under Order XXI Rule 99 CPC for re-delivery.
3. Decree holder filed an objection contending that the property conveyed to him is specifically described in the schedule to the plaint and also in the decree. It was further contended that there was an agreement for sale between the decree holder and the first respondent and the first respondent did not execute the sale deed. So he filed a suit for specific performance and that suit was decreed. During the pendency of the suit, to defeat the interest of the decree holder, first respondent sold the property to her husband and others. It was contended that appeal filed against the decree was dismissed and court had executed a sale deed. On several occasions Amin was deputed to effect delivery and finally delivery was effected with the help of police. It was contended that the decree holder is in possession of the property delivered over to him and the application was filed in collusion with the first respondent to harass the decree holder. It was contended that at no point of time the appellants were in possession of the property and they did not get any right or possession over the said property. The averment that the actual extent of the property comprised in Sy.No.269/1 was 93 cents was not correct. It was contended that the first respondent had fabricated documents to defeat the interest of the decree holder. The property was identified with the help of Taluk Surveyor. There was no bona fides in the application filed by the appellants.
4. Execution Application No.1040 of 1991 was tried along with O.S. No.1021 of 1991
