IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 EFA.No. 32 of 1993() -------------------- (AGAINST THE ORDER IN E.A.59/91 IN E.P. NO. 121/90 IN O.S. NO. 64/1986 ON THE FILE OF THE SUB COURT, ERNAKULAM) APPELLANT: ----------- SOMARAJAN SON OF MADHAVA PANICKER THAZHAVA HOUSE, KADAVANTHRA ELAMKULAM VILLAGE, KANAYANNUR TALUK BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.B.ANILKUMAR RESPONDENTS: --------------- 1. A.P. THOMAS ALIAS TOMY S/O PETER PETREZ BUILDING SAHODARAN AYYAPPAN ROAD KOCHI-20 2. A.P. GEORGE, ALIA JOY SON OF PETER , ANTHIKKATT HOUSE KARITHALA ROAD, COCHIN-16 3. PETER SON OF THUMMY (DIED. LRs IMPLEADED) ANTHIKKAT HOUSE, KARUTHALA ROAD COCHIN-16. *4. T.A.RAPHEL S/O ALLESH, THAICHIRA HOUSE, H.NO. 65/2293, ANGLO INDIAN SCHOOL CROSS ROAD VADUTHALA P.O, KOCHI-682 023 *5. SHEELA TOMY D/O LATE A.P. MARY, THAICHIRA HOUSE H.NO. 65/2293 ANGLO INDIAN SCHOOL CROSS ROAD VADUTHALA P.O, KOCHI-682 023 *6. PENTI LONI D/O LATE A.P. MARY, THAICHIRA HOUSE, H.NO 65/2293 ANGLO INDIAN SCHOOL CROSS ROAD VADUTHALA P.O, KOCHI-682 023 *7. ROSE ANTONY S/O LATE A.P. MARY THAICHIRA HOUSE, H.NO 65/2293 ANGLO INDIAN SCHOOL CROSS ROAD VADUTHALA P.O, KOCHI-682 023 *8. MARY A.J. W/O LATE A.P. JACOB, C/O K.T.PIUS, RATNADEEP COLONY, L.B.S.MARG, BHANDUP MUMBAI-78 *9. GLADSON S/O LATE A.P. JACOB, , RATNADEEP COLONY, L.B.S.MARG, BHANDUP MUMBAI-78 * 10. GLORIA D/O A.P.JACOB, RATNADEEP COLONY, L.B.S.MARG, BHANDUP MUMBAI-78 *11. A.A.REGINA W/O LATE A.P.ANTONY, PULINTHARA HOUSE (DIED) THOPPUMPADY COCHIN-682 003 *12. A.A.RAJI D/O LATE A.P. ANTONY PULINTHARA HOUSE THOPPUMPADY COCHIN-682 003 LRs OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENOTS 4 TO 12 AND RESPONDENTS 1 & 2 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT VIDE ORDER DATED 12.6.2008 ON I.A. 1941 OF 2007 (RESPONDENTS 8,9 AND 10 (RESPONDOENTS 7 8 AND 9 IN THE I.A 1941 OF 2007) ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 11.3.2008 IN I.A. 585/2008) RESPONDENT NO.11 (RESPONDENT NO.10 IN THE I.A 1941 OF 2007 )DIED. THE 12TH RESPONDENT( RESPONDENT NO.11 IN THE I.A 1941 OF 2007 ) IS RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED AS PER ORDER DATED 11.03.2008 IN I.A. 584/2008) BY ADV. SRI.K.R.MOHANAN THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, ALONG WITH CRP NO. 369 OF 1994 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------ E.F.A No. 32 of 1993 & C.R.P No. 369 of 1994 ------------------------------------------- Dated this the 12th day of June 2008 JUDGMENT The appellant in E.F.A 32/1993 is the decree holder in E.P 121/1990 in O.S. 64/1986 on the file of the Principal Sub court Ernakulam The respondent Nos. 1 and 2 are the claim petitioners in E.A. 59/1991. They sought for releasing the property under attachment having an extent of 18 ½ Cents. By the impugned order the court below allowed I.A. No. 59/1991 filed by the claim petitioners finding that the judgment debtor has no subsisting right over the attached property. Respondents 1 and 2/claim petitioners claimed right over the property on the strength of a will executed on 14.5.1986 by their mother Smt. Veroni, the wife of the judgment debtor . According to respondents 1 and 2 on the death of the mother on 28.9.1987 the property devolved on them as per the will. They also contended that the judgment debtor has no manner of right over the property. The appellant is the revision petitioner in C.R.P No. 369 of 1994. 2. The revision petitioner/ decree holder filed objection interalia contending that the property belonged to the judgment debtor,and his wife had no title over it and from 1980 onwards the Judgment Debtor was indebted .According to him as on the date of the attachment order E.F.A No. 32 of 1993 -2- & C.R.P No. 369 of 1994 viz.1.3.1986 the wife of the Judgment debtor was in possession of the property and settlement of gift deed executed by the Judgment Debtor in favour of his wife Smt.Veroni (Ext.A2) is a sham , bogus and inoperative document. It was executed with an intention to defeat and delay the existing creditors and prospective creditors of the judgment debtor. According to the revision petitioner/ decree holder there is no devolution of interest on the property as stated in paragraph 2 of the affidavit filed in support of the claim petition It is also contended by the revision petitioner/ decree holder that the judgment debtor was aware of the attachment of the property as it was attached and neither the claim petitioners or their mother objected to the attachment and therefore there is statutory bar by virtue of Section 11 r/w Section 141 of the C.P.C The further objection is that the judgment debtor is the owner of the property and that even if the alleged gift ( Ext.A2) was valid Smt. Veroni was a universal Donee and hence the claim petitioners are liable to satisfy the decree debt. 3. I have gone through the order passed by the court below Apart from examining the title of the claimants the court did not consider the objections referred above which are very seriously prosecuted by the revision petitioner/decree holder The impugned order does not contain even a reference to the serious objections raised by the revision petitioner/ decree holder Therefore I am of the view that the matter requires re- consideration 4. The execution court closed the E.P on the basis of the E.F.A No. 32 of 1993 -3- & C.R.P No. 369 of 1994 decision taken in E.A. No. 59/1991 The order in E.A. 59/1991 is the subject matter of E.F.A. 32/1993 which is remanded by this Court. Consequently this Court set aside the orders passed in E.P No. 121/1990. In the light of the judgment passed in E.F.A. 32/1993 the Execution Court shall take back the E.P No.121/1990 to file and pass orders along with E.A. No59/1991 The parties shall appear before the Execution court on 15.7.2008 and there will be a further direction to the Execution court to dispose of the E.P along with E.A. afresh within a period of six months from the date of appearance of the parties The Execution court shall consider all the contentions raised by the parties The Execution Court shall also afford an opportunity to both sides to adduce evidence in support of their respective contentions. The parties are at liberty to adduce evidence if any . In the result E.F.A 32/1993 is allowed and the matter is remanded for denovo consideration C.R.P No. 369 of 1994 is disposed of as above. There will be no order as to costs. HARUN-UL-RASHID, JUDGE es