IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 EFA.No. 28 of 1998() ----------------------------- AGAINST THE ORDER DATED 24/08/1998 IN EA.38/97 IN EP.72/93 IN OS.135/1991 of MUN-MAGI COURT, SASTHAMCOTTA .................... APPELLANT(S): PETITIONERS IN E.A. ----------------------- 1. KHADEEJA BEEVI, ETTURUTHI PADINJATTETHIL, PALLISSERICKAL, SASTHAMCOTTA. 2. SULEKHA BEEVI, HAZEENA MANZIL, PALLISSERIKAL, SASTHANKOTTA. BY ADV. MR.M.P.MUHAMMAD FAZIL RESPONDENT(S): RESPONDENT ------------------------- TRAVANCORE DEVASWOM BOARD, REP.BY ITS SECRETARY, TRIVANDRUM BY MR.U.K.RAMAKRISHNAN, SENIOR ADVOCATE BY ADVS.MR.E.K.MADHAVAN MR.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA MR.V.KRISHNA MENON MR.P.J.ANILKUMAR THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, ALONG WITH EFA NO. 29 OF 1998 EFA NO. 31 OF 1998 EFA NO. 34 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.4864/1998 IN EFA. NO.28/1998 DISMISSED 29/09/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN, J. ........................................... EFA.NO.28 OF 1998, EFA.NO.29 OF 1998, EFA.NO.31 OF 1998 & EFA.NO.34 OF 1998 ............................................. Dated this the 29th day of September, 2009 J U D G M E N T EFA.28/1998 is preferred against the order in EA.No.38/1997 in EP.No.72/1993 in OS.No.135/1991 of the Munsiff Court, Sasthamcotta. EFA.No.29/1998 is preferred against the order in EA.No.48/1997 of the same proceedings. EFA.No.31/1998 is preferred against the order in EA.No.37/1997 of the same proceedings. EFA.No.34/1998 is preferred against the order in EA.No.33/1997 of the same court. 2. EFA.No.28/1998 which arises out of the order in E.A.No.38/1997 is filed by the legal representatives of one Assanar Yusuf who was the 18th defendant in the case. He died in the year 1986 and a decree was passed against him without his legal representatives in the year 1991. A perusal of the affidavit filed in support of the EA would reveal that on the death of the 18th defendant, the plaintiff filed : 2 : EFA.NO.28 OF 1998& Con.Cases applications for setting aside the abatement and to condone the delay to implead the legal representatives of the deceased 18th defendant. Before that, it is desirable to state that O.S.No.135/1991 was originally filed as O.S.No.66/1979 before the Munsiff Court, Adoor which was transferred to the Munsiff Court, Karunagappally wherein it was numbered as A.S.No.54/1986 and subsequently it was transferred to the Munsiff Court, Sasthamcotta. It was during the pendency of the petitions before the Munsiff Court, Karunagappally, the petition to set aside the abatement and condonation of the delay as against the 18th defendant was filed. Unfortunately, both the petitions were dismissed and against that, applications were filed as CMA.Nos.42 and 43 of 1988 which also ended in dismissal and ultimately the matter reached this Court as CRP.Nos.2674/1990 and 12/1991 which were also dismissed. Therefore, the petition to condone the delay and set aside the abatement so far as it relates to the 18th defendant in the suit were dismissed by the court and no legal representative of the 18th defendant was brought into the party array. When such is : 3 : EFA.NO.28 OF 1998& Con.Cases the position, whether the decree obtained against the 18th defendant can be enforced and whether the provision of Section 47 of the C.P.C will stand in the way are all matters which require adjudication. Since there is no valid decree against the 18th defendant it will not bind on legal representatives and therefore the matter requires consideration. If it is a non-executable decree as againt the 18th defendant, most probably the question of enquiry into other aspects may not arise at all. 3. EFA.No.29/1998 is filed by the legal representatives of the 12th defendant in the suit. They are also claiming an extent of property covered in the plaint schedule. According to them, their predecessor in interest namely the 12th defendant - IbrahimKutty died on 8.2.1991 and a decree was passed on 25.9.1991 without impleading the legal representatives and therefore the decree passed against Ibrahimkutty is void which cannot be enforced. So, it is a matter which requries consideration by the court under Section 47 and thereafter under Order XXI Rule 99 of the CPC as the case may be. : 4 : EFA.NO.28 OF 1998& Con.Cases 4. EFA.No.31/1998 is preferred against an order in the claim petition which would indicate that the claimants are claiming independent right and possession over the property having an extent of 20 3/4 cents with reference to Document No.677/1997. Since they are not parties to the suit and as the decree is not binding on them, their claim petition is liable to be adjudicated under Order XXI Rule 99 of CPC. 5. EFA.No.34/1998 is preferred against the order in E.A.No.33/1997 and there also the claimants are not parties to the litigation and they are claiming independent right over an extent of 20 cents of properpty covered by Survey No.684/1 as per document dated 13.6.1996. Most probably, this is a document which has come into being after the judgment is pronounced by the court but it may be necessary to trace out the title deed of the parties for a proper adjudication of the matter. Unfortunately, the learned Munsiff had disposed of all these applications on the ground that an order passed by this court in CRP.No.1159/1996 would clinch the issue. A learned Judge of this Court held that "before the executing court a : 5 : EFA.NO.28 OF 1998& Con.Cases contention was sought to be raised that the execution became abated. The court held that no part of the decree is abated as contended. I see no reason to interfere with the order. More over in view of the Order XXII Rule 12 of CPC, there cannot be any abatement of the execution. I dismiss the revision". 6. The question that arises for determination in all these EFA's and claim petitions are regarding the executability of the decree passed against the 12th and 18th defendants as well as the independent right alleged to be claimed by the other claimant in the other two EA's. It is not the question of abatement that looms large in the execution petition but it is really the binding nature whether a decree passed against a dead person can be executed against their legal representatives or in other words whether there is executable decree so far as it relates to the legal representatives of the 12th and 18th defendants are concerned. So also, the learned executing court has to decide the claim petition preferred by the other two, claiming independent rights entertainable as contemplated : 6 : EFA.NO.28 OF 1998& Con.Cases under Order XXI Rule 99. All the execution applications really deserve judicial consideration at the hands of the learned executing court after hearing all concerned. Therefore, the order passed in all EAs' are set aside and the matter is remitted back to the leanred executing court to consider it afresh in the light of the observations made by me in the previous paragraphs. The parties are directed to appear before the executing court on 17.11.2009. M.N.KRISHNAN, JUDGE cl : 7 : EFA.NO.28 OF 1998& Con.Cases M.N.KRISHNAN, J. ........................................ EFA.NO.28 OF 1998, EFA.NO.29 OF 1998, EFA.NO.31 OF 1998 & EFA.NO.34 OF 1998 ........................................ 29th September, 2009 J U D G M E N T