IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No.35110 of 2008 (D) ---------------------------------- OS.189/1995 of SUB COURT, CHERTHALA .................... PETITIONER: --------------- LEELAMMA, W/O.SANKU KUMARAN, R/A MALEPARAMBIL, THANNEERMUKKOM NORTH VILLAGE & MURI, CHERTHALA TALUK, ALAPPUZHA. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SRI.T.S.ARUNKUMAR SRI.SYAM J SAM RESPONDENT: ----------------- RAHDHAKRISHNAN @ RADHAN, KALLAVIL CHIRAYIL FROM VALIYA KARIYIL VARANAM MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHAL TALUK, ALAPPUZHA. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R1 SMT.N.SANTHA FOR R1 SRI.S.A.ANAND FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.35110 of 2008 ------------------------------------------------ Dated this the 20th day of January, 2009 JUDGMENT Petitioner is the judgment debtor in O.S.189/95 on the file of the Sub Court, Cherthala. The decree passed in favour of the respondent in O.S.189/95 was confirmed by the first appellate court in A.S.16/06 vide judgment dt.09/10/07. It is thereafter that the execution petition has been filed in the court below. It is also worthy to mention in this context that the petitioner/judgment debtor, claiming that she is the second wife of the father of the respondent/decree holder filed O.S.114/85 for partition of the property involved in this suit and that, finally went against her as she failed to establish that she is the legally wedded wife of the father of respondent/decree holder and that was vide judgment dt.02/02/05 in S.A.423/95. In W. P. C. No.35110 of 2008 -2- execution of the decree declaring title of the respondent/decree holder and allowing recovery in O.S.189/95 the petitioner advanced claim filing E.A.339/08 and E.A.347/08, in both of which the claim advanced is the same and the claims so advanced is that while she was about to vacate the building in the scheduled property removing her belongings so as to proceed to Guruvayoor she came by a will deed executed by her deceased husband Sanku Kumaran, father of the respondent/decree holder bequeathing the scheduled property jointly in favour of the petitioner and the respondent and that the right under the will be established in execution of the decree in O.S.189/95 being a claim that comes under Section 47 of the C.P.C which deserves adjudication by the execution court. It is not in dispute that if a new right is acquired by W. P. C. No.35110 of 2008 -3- a judgment debtor that can be agitated by moving a claim petition on the execution side resisting execution of the decree whereunder recovery of possession of the scheduled property is allowed. But in the instant case, the will that is relied upon by the petitioner is submitted to have come into force on 27/02/84 on the death of the testator Sanku Kumaran. The date of death of Sanku Kumaran as being on 27/02/84 is not in dispute. O.S.114/85 instituted by the petitioner claiming partition and O.S.189/95 instituted by the respondent/decree holder for declaration of title and for recovery of possession from the petitioner/judgment debtor are all suits instituted subsequent to 1984. In none of these proceedings the petitioner/ judgment debtor has set up the disputed will to advance claim thereunder. W. P. C. No.35110 of 2008 -4- 2. Counsel for the petitioner submits that the petitioner came to know of the will only just before filing of E.A.339/08 and therefore, she was not aware that she was having such a right so as to be advanced either in O.S.114/85 or in O.S.189/95. The fact remains that if at all there is a will whereunder the petitioner has acquired any right that is a claim which might and ought to have been advanced in O.S.114/85 and O.S.189/95. The fact that the petitioner was not having knowledge of that right can be stated to be a mistake of fact at best but that mistake of fact has no bearing on the question of res judicata. The claim which ought to have been raised in the two earlier suits which were filed subsequent to the death of Sanku Kumaran on 27/02/84 are suits wherein the petitioner should have asserted her right W. P. C. No.35110 of 2008 -5- under the will and she having not advanced such a claim on the strength of that will the present claim advanced on the basis thereof is barred by principles of constructive res judicata and cannot be countenanced. There is no merit therefore, in this Writ Petition and this Writ Petition is dismissed. K.P.BALACHANDRAN, JUDGE kns/-