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HIGH COURT OF KERALA
THOMAS P.JOSEPH, J
KARUNAKARAN NAMBIAR – Appellant
Versus
PALOTH THANKAM – Respondent
OP (CIVIL) 1052/2013
Execution - Amendment of Execution Petition - Code of Civil Procedure, Order XXI, Rule 30 - The court interpreted the provisions for execution in conjunction with final decrees, ruling that personal execution was not permissible where the decree only allowed for property execution.
Fact of the Case:
The petitioner challenged an order allowing the amendment of an execution petition to include personal execution for a final decree requiring them to pay owelty, which was claimed to only allow property execution.
Issues: Whether the execution petition could be amended to include a prayer for personal execution when the final decree only allowed execution against the property.
Ratio Decidendi: The court established that the nature of the final decree did not support simultaneous execution against both person and property; only the property could be pursued for realization of the amount due.
Final Decision: The amendment allowing personal execution was set aside, and the execution against the property was affirmed.
JUDGMENT
Ext.P5, order dated 22.02.2013 on E.A. No. 51 of 2013 in E.P. No. 69 of 2011 in O.S. No. 508 of 1982 of Principal Munsiff's Court, Kozhikode-I allowing amendment of the execution petition to incorporate a prayer for personal execution against petitioner/1st defendant is under challenge.
2. As per Ext.P1, final decree for partition, petitioner is liable to pay owelty to the respondents and others. The final decree created charge over property allotted to the petitioner for the said amount. Pursuant to Ext.P1, final decree respondents filed Ext.P2, application for execution requesting to realise the amount by proceeding against property of petitioner. While that execution petition was pending, they filed E.A. No. 51 of 2013 for amendment of the execution petition to incorporate a prayer for personal execution against petitioner. Learned Munsiff allowed that application observing that as per Rule 30 of Order XXI of the Code of Civil Procedure (for short "the code"), mode of execution can be invoked.
3. Learned counsel for petitioner contends that Ext.P1, final decree is not a composite decree so that there could be simultaneous execution against person and property of O.P.(C) No. 1052/2013 : 2:
petitioner. Hence, the impugned order is illegal, it is argued.
4. Learned counsel for respondent, however, supported the order.
5. Rule 30 of Order XXI of the Code refers to the mode of execution in the case of a decree for payment of money. Ext.P1, final decree does not provide for personal execution against petitioner. Instead, it only enables respondent to realise the amount of owelty by sale of property allotted to the petitioner. In that view of the matter, order allowing amendment of the execution petition to incorporate a prayer for personal execution cannot be sustained.
Resultantly, this Original Petition is allowed as under:
1.Ext.P5, order dated 22.02.2013 on E.A. No. 51 of 2013 in E.P. No. 69 of 2011 in O.S. No. 508 of 1982 of the Principal Munsiff's Court, Kozhikode-I is set aside.
2.E.A. No. 51 of 2013 will stand dismissed.
3.It is made clear that respondent can proceed against property of petitioner over which charge is created as per Ext.P1, final decree for realisation of the amount if any due.
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