IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 RSA.No. 1066 of 2010() ---------------------- AS.227/2008 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.38/2002 of PRINCIPAL SUB COURT, ATTINGAL .................... APPELLANT/1ST RESPONDENT/PLAINTIFF: ------------------------------------------------------ KAASIM SHAFI, S/O.OAANARUKUNJU CHEKKALAVILAKATHU VEEDU, KAPPIL DESOM, EDAVA, KAPPIL, THIRUVANANTHAPURAM REP.BY HIS POWER OF ATTORNEY HOLDER SHAFI SHAKKUTTY S/O KASSIM SHAJI,R/AT PALAVILAKOM VEEDU,KAPPIL, EDAVA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S)/2ND RESPONDENT & APPELLANT/DEFENDANTS: ---------------------------------------------------- 1. S.RAGHAVAN, RESIDING AT S.K.BUILDINGS, MAIDANAM, CHERUKUNNAM DESAM, VARKALA, THIRUVANANTHAPURAM. 2. MOHEMMED ABDUL KHADER, S/O.ABDUL RAHMAN KUNJU, RESIDING AT KIZHAKKEVILA VEEDU, VENKULAM, EDAVA, THIRUVANANTHAPURAM DIST. ADV. SRI.D.KISHORE FOR R2 SRI.D.KISHORE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1066 OF 2010 (B) ----------------------------------- Dated this the 3rd day of November, 2010 J U D G M E N T Plaintiff is the appellant. Suit was one for declaration of title, possession and consequential reliefs. In brief, the plaintiff sought for declaration over the plaint property contending that the delivery effected in execution of a decree in a suit filed by the plaintiff as against the 2nd defendant will not in any way affect his title and interest over the suit property. A portion of the suit property, according to the delivery report prepared by the Amin in execution of the decree of the suit filed by the 1st defendant, has been shown as having been delivered over to the decree holder/auction purchaser. Plaintiff contended that it was only a paper delivery and not binding on him. Though the defendants resisted the suit claims on various grounds, on the materials placed, the trial court upholding the claim of the plaintiff granted him a decree, as applied for. In the appeal, the R.S.A.NO.1066/2010 2 lower appellate court reversed the decree passed by the trial court and dismissed the suit. Feeling aggrieved, the plaintiff has preferred this second appeal. 2. Though various grounds have been raised to impeach the correctness of the decision rendered by the lower appellate court in reversing the decree granted in favour of the appellant/plaintiff, I find the most crucial question emerging for consideration on the facts pleaded is whether the suit filed by the appellant was maintainable. Challenge raised in the suit, whatever be the basis of the plaintiff, was in respect of delivery effected over an immovable property in execution of a decree passed by the competent civil court, and that being so, which is the forum where the plaintiff, if at all he has got a grievance to challenge the execution and delivery of a property over which the judgment debtor has no right, had to raise that challenge, is the question to be looked into. That question is no longer res integra and it has been settled by the decision of the Apex Court in unmistakable terms. It has been held in Babulal v. Raj R.S.A.NO.1066/2010 3 Kumar and Others (AIR 1996 SC 2050) following the decision in Bhanwar Lal v. Satyanarain (AIR 1995 SC 358), on the contextual facts presented, the remedy of the person aggrieved is only to approach the execution court where the decree was executed. It may be appropriate to take note of the observations made by the Apex Court in Bhanwar Lal's case, which reads thus: “The determination of the question of right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order XXI Rule 98 which is an order and is a decree under Order XXI Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself.” The plaintiff in the present case should have ventilated his grievances, if any, approaching the court which executed the decree, in which, the delivery was effected, which, according to him, has cast a cloud on his title over the suit property. The learned counsel appearing for the appellant realising the R.S.A.NO.1066/2010 4 insurmountable difficulty in canvassing for the maintainability of his suit, urged for reserving his right to agitate his claim over the suit property before the execution court. It is submitted that he had filed a claim petition under Order XXI Rule 58 of the CPC, but it had been dismissed for default. Whatever remedies, if any, open to the petitioner, as provided by law, can be taken up by the appellant/plaintiff, over which, this Court need not express any opinion. Appeal is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.1066/2010 5