IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 CRP.No. 2189 of 2002 AGAINST THE ORDER DATED 9.8.2002 IN E.P.NO.6/98 OF THE MUNSIFF'S COURT, PEERMADE. O.S.NO.495 OF 1986 OF THE MUNSIFF'S COURT, IDUKKI. REVN. PETITIONER: DECREE HOLDER: -------------------------------- P.K.JANARDHANAN, S/O. KUNJU PILLAI, POOYAPPALLIL HOUSE, MURIKKADY KARA, PERIYAR VILLAGE, PEERMADE TALUK. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENTS: JUDGMENT DEBTORS: ------------------------------ 1. RAMAN PILLAI KUNJU KRISHNA PILLAI, KULANGARA HOUSE, MURIKKADY KARA, KUMILY VILLAGE, PEERMADE TALUK. 2. VISWANATHAN, CHALIL HOUSE, MURIKKADY KARA, PERIYAR VILLAGE, PEERMADE TALUK. 3. OMANA, W/O. VISWANATHAN, CHALIL HOUSE, PERIYAR VILLAGE, PEERMADE TALUK. R1 BY ADV. SMT.R.REMA R2 & R3 BY ADVS.M/S.C.HARIKUMAR AND R.HARIKRISHNAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON 31/01/2008 PASSED THE FOLLOWING: C.M.P.NO.5435/2002 IN C.R.P.NO.2189/2002 DISMISSED 31/1/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 2189 OF 2002 -------------------------------------------- Dated this the 31st January, 2008 O R D E R The petitioner challenges in this Revision the order dated 9.8.2002 in Execution Petition No.6 of 1998 in O.S. No. 495 of 1986, on the file of the Court of the Munsiff of Peermade, by which the Execution Petition filed by the Petitioner was dismissed. 2. The revision petitioner was the first defendant in O.S.No.495 of 1986. The suit was filed by Raman Pillai Kunju Krishna Pillai, the first respondent in the Revision. Respondent No.2 Viswanathan was the third defendant. Respondent No.3 Omana was not a party to the suit. Karthiayani, the mother of the revision petitioner, was the second defendant. Defendants 4 and 5 in the suit were respectively Thomas Chacko and Sosamma. The suit was for declaration of title and recovery of possession. The property involved in the suit is having an extent of four acres. The trial court decreed the suit as per Ext. B4 judgment. 3. Alongwith O.S.No.495 of 1986, the suit filed by the revision petitioner Janardhanan as O.S.No.494 of 1986 against Kunju Krishna Pillai was also tried and disposed of. O.S.No.494 of 1986 was for injunction. That suit was dismissed. C.R.P. NO.2189 OF 2002 :: 2 :: 4. Against the judgment and decree in O.S.No.495 of 1986, the defendants therein filed A.S.No.78 of 1988 on the file of the District Court, Thodupuzha. Against the decision in O.S.No.494 of 1986, the revision petitioner filed A.S.No.73 of 1988 before the District Court. 5. A compromise petition dated 16.3.1989 was filed in A.S.No.78 of 1988. The compromise was recorded and the appeal was disposed of on 29.3.1989 in terms of the compromise. Accordingly, the decree in O.S.No.495 of 1986 was set aside and the suit was disposed of in terms of the compromise. As per the terms of the compromise, the revision petitioner had to pay a sum of Rs.20,000/- to Raman Pillai Kunju Krishna Pillai, the first respondent herein, and on receipt of the amount, Raman Pillai Kunju Krishna Pillai had to execute an assignment deed in favour of the revision petitioner. It was stipulated in the compromise petition that the consideration would be made up of Rs.7,000/- paid on 12.3.1989, Rs.3,050/- deposited by the Receiver before Court and the balance amount of Rs.9,950/- payable by the revision petitioner on or before 31.7.1989. The revision petitioner did not pay the amount within time. However, the amount was paid later and it was received by Raman Pillai Kunju Krishna Pillai. Paragraph 5 of the compromise petition stated that the property in dispute was in the possession of the appellants in the C.R.P. NO.2189 OF 2002 :: 3 :: appeal. (Appellants in the appeal were the revision petitioner, his mother Karthiayani, the third defendant Viswanathan, fourth defendant Thomas Chacko and the fifth defendant Sosamma.) 6. The revision petitioner filed E.P.No.6 of 1998 praying for a direction to Raman Pillai Kunju Krishna Pillai to execute an assignment deed in his favour, in terms of the compromise. It was alleged that though the amount payable as per the terms of the compromise was paid, the first respondent Raman Pillai Kunju Krishna Pillai failed to execute the document. It was also alleged that the first respondent assigned an extent of 2.40 acres to the third defendant Viswanathan (second respondent herein) as per Ext.A1 assignment deed dated 22.4.1992 and an extent of 34 cents in favour of Omana, the third respondent herein, who is none other than the wife of Viswanathan, as per Exts.A2 and A2(a) assignment deeds executed respectively in 1994 and 1995. The revision petitioner also prayed for cancellation of Exts.A1, A2 and A2(a) assignment deeds. 7. The executing court dismissed the Execution Petition. The revision petitioner challenged that order in C.R.P.No.1461 of 1999. C.R.P.No.1461 of 1999 was disposed of by the order dated 24.1.2001, setting aside the order passed by the executing court and remitting the C.R.P. NO.2189 OF 2002 :: 4 :: matter to the executing court. The contention raised by Omana, the third respondent herein, that the Execution Petition was not maintainable against her as she was not a party to the proceeding was negatived in C.R.P.No.1461 of 1999, on the ground that she is a pendente lite transferee. A contention was put forward that as per clause 5 of the compromise, the appellants in A.S.No.78 of 1988, who were the defendants in the suit, were entitled to continue in possession of the property and, therefore, the revision petitioner is not entitled to get an assignment deed executed in his favour. This contention was rejected in C.R.P.No.1461 of 1999 holding thus: “7. As already mentioned, clause 5 enables the appellant to continue in possession of the property. That, however, does not mean that the first respondent has no liability to execute conveyances as stipulated in clauses 1 and 3 of the compromise petition. The compromise petition has to be read as a whole. If it is so done, the conclusion inevitable is that the power to continue in possession will remain operative only as long as the revision petitioner fails to comply with his portion of the obligations contemplated in the decree. It is true that there was some delay on the part of the revision petitioner to pay off the amounts. It is also true that the first respondent in the appeal could have objected to such belated payment and claimed exemption from the operation of his part of the liabilities. However, such an event never took place. The payment made by the revision petitioner, though belated, was accepted by the first respondent in the appeal and along with that his responsibility to discharge his obligations arising under the decree also was revived. After accepting the payments, the first respondent cannot be heard to contend that being belated he can ignore such payments and refuse compliance with the duties expected of him under the compromise decree. C.R.P. NO.2189 OF 2002 :: 5 :: 8. Clause 5 does not stand in the way of the revision petitioner's right to get satisfaction of the decree through conveyances of title as expected in the decree.” 8. The High Court in C.R.P.No.1461 of 1999 also took the view that the executing court has to work out the necessary reliefs in view of the assignment deeds executed by the first respondent in favour of respondents 2 and 3. Respondents 2 and 3 (Viswanathan and Omana) had raised a contention that the assignment deeds were executed by the first respondent in their favour as authorised by the revision petitioner. This was disputed by the revision petitioner. This Court, while disposing of C.R.P.No.1461 of 1999, held thus: “Whether the aforesaid conveyances were on demand made by the revision petitioner is a matter for evidence to be adduced before the execution court. If it is found that the contention of the first respondent in the appeal is correct in that regard, certainly the revision petitioner will not have the right to get conveyances after setting aside the aforesaid three conveyances. If, on the other hand, respondents 2 and 3 fail to establish that it was on request made by the revision petitioner that the conveyances were effected in favour of respondents 2 and 3, certainly the revision petitioner would be entitled to get appropriate reliefs in the matter through the execution court.” 9. After remand, the executing court dismissed the Execution Petition by the order impugned in this Revision. It was held by the executing court that Exts.A1, A2 and A2(a) were executed by the first C.R.P. NO.2189 OF 2002 :: 6 :: respondent in favour of respondents 2 and 3 as authorised by the revision petitioner. This finding was arrived at after considering the oral and documentary evidence in the case and taking into account the facts and circumstances of the case. Before the executing court, the revision petitioner was examined as PW1. The first respondent herein was examined on commission as DW1. The second respondent was examined as DW2 and on his behalf an independent witness was examined as DW3. 10. The documentary evidence in the case would reveal that in 1993 the first respondent had executed Ext.B6 assignment deed in favour of Celeena, assigning an extent of 51 cents (out of the total extent of four acres) in her favour. The revision petitioner is a witness to that document. This extent of 51 cents was in the possession of Karthiayani, mother of the revision petitioner, who was one of the parties to the suit and the appeal therefrom. She was also a party to the compromise. The revision petitioner admits that the transaction evidenced by Ext.B6 was with his concurrence. It has come out in evidence that an extent of 75 cents of land (out of the total extent of four acres) was assigned by the first respondent in favour of Sosamma (5th defendant) as per Ext.B7 assignment deed dated 25.2.1993. The revision petitioner has not sought for any relief in the Execution Petition in respect of the said extent of 75 C.R.P. NO.2189 OF 2002 :: 7 :: cents. Sosamma is not a party to the Execution Petition. It has also come out in evidence that at the time when the compromise petition was filed in A.S.No.78 of 1988, the property was in the possession of the revision petitioner, the third defendant Viswanathan, Karthiayani (mother of the revision petitioner) and Sosamma and they were in possession of different plots. The question considered by the court below was whether the various documents were executed by the first respondent as per the direction of the revision petitioner or without his knowledge and concurrence. After analysing the evidence, the court below held that the documents were executed by the first respondent as per the direction of the revision petitioner and with his concurrence. It was held that the evidence of PW1 would indicate that he was giving a deliberate false version. The revision petitioner in his evidence even disputed the statement in the compromise petition that the other defendants in the suit were in possession of the disputed property. The court below believed the evidence of DWs.1 to 3 and cogent reasons are stated for the same in the order impugned. The court below took note of the fact that Ext.B4 judgment clearly indicates that the defendants in the suit were in possession of the property. The compromise petition would also indicate the same. The Court below took note of the various litigations which arose between the parties as O.S.Nos.57 of 1998 and 88 of 1995 and held that the revision petitioner admitted the fact that the second C.R.P. NO.2189 OF 2002 :: 8 :: respondent herein was in possession of an extent of 2.40 acres. 11. Another factor which the court below considered was that in spite of the compromise decree in 1989, the revision petitioner did not attempt to enforce the decree against the first respondent till 1999 and in the meanwhile, several documents were executed, in one of which the revision petitioner was a witness. In respect of the document executed in favour of the fifth defendant, the revision petitioner has no challenge. It was also noticed that the mother of the revision petitioner was in possession of a portion of the property and Ext.B6 document was executed in respect of that plot. The documents in O.S.No.57 of 1998 and O.S.No.88 of 1995 (Exts.B1 to B3) were also taken note of by the court below in arriving at the conclusion that the revision petitioner was aware of the execution of the documents in favour of respondents 2 and 3 and others. The version of the petitioner as PW1 that he came to know of the execution of the documents in favour of respondents 2 and 3 only in the year 1999 was disbelieved by the court below. Ext.B9 judgment by which the civil court decreed O.S.No.57 of 1998 filed by Omana , and dismissed O.S.No.88 of 1995, filed by the revision petitioner, was also taken note of by the court below. 12. Learned counsel for the revision petitioner contended that the C.R.P. NO.2189 OF 2002 :: 9 :: executing court did not comply with the directions contained in the order in C.R.P.No.1461 of 1999 and on the other hand, the court below considered irrelevant materials to arrive at the conclusion. The counsel contended that the only question to be considered was whether the assignment deeds executed by the first respondent in favour of respondents 2 and 3 were with the concurrence of the revision petitioner. According to the counsel, the court below was not justified in considering the question of possession and the other circumstances which led to the compromise, in deciding the issue. I do not agree with the contention raised by the counsel for the petitioner. The court below has considered each and every material fact and the oral and documentary evidence meticulously. All the relevant aspects were taken note of and all the contentions were considered by the court below. The court below has duly complied with the directions contained in the order in C.R.P.No.1461 of 1999. I concur with the reasoning and conclusion arrived at by the court below. I am of the view that the Civil Revision Petition is devoid of merits. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 2189 OF 2002 O R D E R 31st January, 2008 -------------------------------------------