IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 EFA.No. 6 of 1998() ------------------- AGAINST THE ORDER DATED 12/08/1997 IN EA 1/95 IN EP 4/91 IN OS.82/1960 of ADDL. DISTRICT COURT, PARAVUR .................... APPELLANT/PETITIONER/STRANGER ----------------------------------------------------- 1. RAGHUTHAMAN, S/OMEPPANA UNNI RESIDING AT SREERANGAM VEEDU, MUPPATHADAM KARA KODUNGALLUR VILLAGE )( DIED & LRS IMPLEADED ADDL APPELLANTS 2. BABY, W/O.RAGHUTHAMAN, RESIDING AT SREE RANGAM VEEDU, MUPPATHAAM KARA KADUNGALLUR VILLAGE 3. SHEEBA, D/O.RAGHUTHAMAN, RESIDING AT SREERANGAM VEEDU, -DO- (LRS OF DECEASED SOLE APPELLANT IMPLEADED AS ADDL.APPELLANTS 2 AND 3 AS PER ORDER DT. 29.3.2005 ON IA 701/05) BY ADV. SRI.P.R.VENKETESH RESPONDENT/RESPONDENT/DECREE HOLDER ------------------------------------------------------------------- 1.PADMAKSHY, D/O.RAMAN, THANNIKKAL KUNDUPARAMBIL, KARUMALLOOR KARA AYROOR VILLAGE ADDL.RESPONDENTS 2. PYARI K P, D/O.LATE PADMAKSHY CHITHIRA BHAVAN, 241/VII, MAKKANAI MANNAM PO, ERNAKULAM DISTRICT 3. JEEVAN KG ,S/O.LATE PADMAKSHY -DO- 4. RENJITH K G, S/O.-DO- -DO- EFA 6 OF 1998 -2- 5. SRI.HARSHAN, S/O.-DO—DO- 6. JAQUILIN, D/O. -DO- -DO- (ADDL.R2 TO R6 IMPLEADED AS PER ORDER DT.22.3.2010 ON IA NO.2860/09 IN RP 1107/07) ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.K JAYAKUMAR THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH EFA NO.7 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- EFA Nos.6 & 7 of 1998 ------------------------------------- Dated this the 11th day of November 2011 Judgment I am fortunate that I need not labour much on the facts of the case as they are briefly stated in the order passed by this court on 30.05.2007 in EFA Nos.6 and 7 of 1998. By the order passed in the subsequent RPs, the judgment passed by this court in these appeals on 30.05.2007 was reviewed and the matter was directed to be heard again. 2. The appeals are directed against the proceedings for execution in a petition for damages. The predecessor-in-interest of the appellant, who is the 10th defendant herein suffered a decree. When that decree was put in execution, the court below issued notice. The 10th defendant did not choose to contest the case. The appellant set up a claim regarding 78.5 cents which was delivered as part of item No.4 in the plaint schedule. He set EFA 6 & 7/98 2 up an independent claim, which is made mention of in the earlier judgment. He sought to get himself impleaded on an another occasion, but that petition was later dismissed as not pressed. Subsequent to that, he filed the present petitions, seeking delivery of the property on the ground that he has independent rights over the same and the decree holder has no manner of right to get possession of the property over which he lays claim. It is also pointed out by the appellants that execution of the decree is barred by limitation. The lower court considered the grounds raised by the appellant herein and found that the claim that the execution is barred by limitation, cannot be countenanced. It is the said finding that is assailed in these appeals. 3. The learned counsel for the appellant pointed out that the view taken by the lower court that the execution petition is not barred by limitation, cannot be sustained in view of the decision in Chiranji Lal v. Hari Das (2005) 10 SCC 746). It is also pointed out that the finding of the court below that since the earlier EA has been dismissed as not EFA 6 & 7/98 3 pressed, a fresh EP will not lie, also cannot be accepted. The learned counsel further pointed out that the earlier EA was filed for impleadment in the execution proceedings and that was before the delivery was fixed. The present petition has been filed after the delivery has been effected and though filed on similar grounds, going by Order XXIII Rule 4 of CPC, those provisions do not apply to execution proceedings and therefore, a fresh EA is perfectly maintainable. 4. As regards the question of lis pendens, it was contended that even prior to the execution proceedings were initiated, the decree holder was informed about the assignment in favour of the appellant and still when he filed EP, he chose to make the 10th defendant the assignor of the appellant as a party to the proceedings and did not deliberately implead the appellant herein. Therefore, it is pointed out that the plea of lis pendens also cannot be sustained. EFA 6 & 7/98 4 5. These appeals can be disposed of on a short ground. Admittedly, the preliminary decree was passed on 23.10.1958 and the final decree on 9.3.1970. The final decree was engrossed on stamp paper on 19.11.1990 and execution petition was filed on 9.3.1991. The lower court took the view that time begins only from the date on which the final decree is engrossed on stamp paper and viewed from that angle and if that date is taken into consideration, the EP is well within the period of limitation. 6. That does not appear to be the law as it now stands. In the decision reported in Chiranji Lal v. Hari Das (supra), it was held that the time begins to run from the date of final decree and not from the date on which it is engrossed on the stamp paper. 7. The learned counsel for the respondent pointed out that the principle laid down in that decision has to be confined to the facts of that case and the situation then available will have to be considered. It is also pointed EFA 6 & 7/98 5 out that there is no direction in the above decree regrding productionof stamp paper and that probably weighed with the Apex Court in taking the said view. 8. The distinction that is sought to be drawn by the learned counsel for the respondents is without any merits. The Apex Court while considering the question as to when the period of limitation for execution of the final decree begins, took the view that the time beings to run from the date of final decree itself and not from the date of engrossment on the stamp paper. The Apex Court was inclined to take such a view since according to the Apex Court, if it was otherwise, a party could prolong the execution of the decree by delaying the engrossing of the decree on the stamp paper. That cannot be the policy of law and it was held that time begins to run from the date of final decree. 9. The principle laid down in Chiranji Lal v. Hari Das (supra) squarely applies to the case on hand. In the result, these appeals are allowed. The impugned orders EFA 6 & 7/98 6 are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. sta EFA 6 & 7/98 7 EFA 6 & 7/98 8