IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 OP(C).NO. 399 OF 2010(O) ------------------------------------- AGAINST THE ORDER IN EP.202/07 IN OS.572/2006 OF ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONER: -------------------- JOY ALEXANDER, S/O.ALEXANDER, THOTTATHIL VEEDU, SREE KRISHNA NAGAR-262 ASHRAMAM WEST WARD, KOLLAM EAST VILLAGE. BY ADV. SRI.P.SIVARAJ RESPONDENT(S): ------------------------ 1. C.B.JALAJA, PRAVEEN BHAVANAM, ASHRAMAM WEST WARD, KOLLAM EAST VILLAGE. 2. SHIHAB, SHIHAB MANZIL, VADAKKEVILA P.O., KOLLAM-10. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.399 of 2010 ==================================== Dated this the 20th day of October, 2010 J U D G M E N T Respondent No.1 obtained a decree for payment of money against the younger brother of petitioner who, according to the petitioner is not heard of since the last several years. Respondent No.1 executed the decree and property belonging to the judgment debtor was sold in auction and purchased by respondent No.2 on 19.10.2009 for a sum of Rs.6,75,000/-. Respondent No.2 filed application for delivery of property in his favour. Petitioner filed Ext.P1, application (E.A. No.394 of 2010) claiming that 2.75 cents in R.S. No.33/62 belonged to his father by way of kudikidappu and that he has been residing in the said property for the last 40 years. He claimed to have 1/6th right in the said property along with other legal heirs of the father by succession consequent to the death of the father. Respondent No.2 resisted the application contending that the petitioner has no right over the property. Before the executing court petitioner produced Exts.A1 to A5(a), all meant to show that petitioner was residing in the property sold in auction. Executing court observed O.P(C) No.399 of 2010 -: 2 :- that case records revealed that petitioner's father had assigned the property in favour of the judgment debtor by a sale deed on 16.12.2005 and that petitioner failed to prove any right, title or interest over the said property except that he is residing therein. Accordingly the application was dismissed. That order is under challenge in this petition. Learned counsel for petitioner contended that evidence on record was not properly appreciated by the executing court. Learned counsel for respondent No.2 contended that property has already been delivered over to him, that fact has been recorded and execution application was closed on 19.10.2010. Learned counsel for respondent No.2 also challenged maintainability of this petition under Article 227 of the Constitution as petitioner is asserting independent right over the property in which case the order on E.A. No.394 of 2010 must be deemed to be a decree under Rule 103 of Order XXI of the Code of Civil Procedure (for short, “the Code”) and hence is subject to appeal. 2. Since by the time E.A.No.394 of 2010 was filed the sale was effected and confirmed that application can only be treated as an anticipatory obstruction under Rule 97 of Order XXI of the Code in which case executing court was required to O.P(C) No.399 of 2010 -: 3 :- conduct enquiry and determine the right claimed by petitioner under Rule 101 of Order XXI of the Code. Rule 98 of Order XXI states that on determination of the question referred to in Rule 101, the court in accordance with provisions of sub-rule (a) of that Rule make an order allowing the application and directing that the applicant be put in possession of the property or dismissing the application or pass such other order as in the circumstances of the case the court may deem fit. Then comes Rule 103 of Order XXI which states that where any application has been adjudicated upon under Rule 98 or Rule 100 the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. In the present case petitioner is not making a claim under the judgment debtor. Instead he is asserting independent right over the property claiming that it originally belonged to his father by way of kudikidappu and on the death of the father by succession he got 1/6th right in the said property. Since petitioner is asserting independent right and not claiming under the judgment debtor, the order on E.A. No.394 of 2010 which is under challenge in this Original Petition has to be deemed to be decree as provided in Rule 103 of Order XXI which is subject to an appeal. When statutory remedy of appeal is available to the O.P(C) No.399 of 2010 -: 4 :- petitioner the power under Article 227 of the Constitution is not required to be exercised. This petition is therefore liable to be dismissed without prejudice to the statutory right of petitioner to challenge the impugned order by way of appeal as provided under law. Resultantly, this petition is dismissed without prejudice to that right of petitioner. THOMAS P. JOSEPH, JUDGE. vsv