IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 28846 of 2007(F) -------------------------- OS.47/2005 of MUNSIFF COURT, PUNALUR .................... PETITIONER: ----------------------- G.ANILKUMAR, S/O.GOPALAKRISHNAN, AGED 33 YEARS, ANANDA BHAVAN, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND MOTHER SMT.LEELA, W/O.GOPALAKRISHNAN, ANANDA BHAVAN, PAVITHRESWARAM VILLAGE, KOTTARAKKARA. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENTS: ------------------------ 1. REENA, AGED 29 YEARS, W/O.LALUMON, CHARUVILA PUTHEN VEEDU, KALLUMALA, PUNALUR MURI, PUNALUR VILLAGE. 2. LALUMON, AGED 34 YEARS, S/O.PAPPACHAN, P.B.NO.895, FUJIRAH, U.A.E. BY ADV. SRI.S.SREEKUMAR - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28846/2007 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF SALE DEED NO.2483/1994 OF S.R.O., PUNALUR EXECUTED IN FAVOUR OF THE PETITONER DTD. 23/06/1994. EXT.P2: COPY OF JUDGMENT IN O.S.NO.308/2002 OF THE MUNSIFF'S COURT, PUNALUR DTD. 21/10/2003. EXT.P3: COPY OF PETITION IN E.A.NO.31/2005 IN E.P.NO.65/2004 IN O.S.NO.308/2002 OF THE MUNSIFF'S COURT, PUNALUR DTD. 14/02/2005. EXT.P4: COPY OF ORDER IN E.A.NO.31 OF 2005 IN E.P.NO.65/2004 IN O.S.NO.308/2002 OF MUNSIFF'S COURT, PUNALUR DTD. 23/11/2006. EXT.P5: COPY OF PLAINT IN O.S.NO.47/2005 OF THE MUNSIFF'S COURT, PUNALUR DTD. 14/02/2005. EXT.P6: COPY OF WRITTEN STATEMENT IN O.S.NO.47 OF 2005 OF THE MUNSIFF'S COURT, PUNALUR DTD. 23/07/2005. EXT.P7: COPY OF PETITION I.A.NO.385/2005 IN O.S.NO.47/05 OF THE MUNSIFF'S COURT, PUNALUR DTD. 16/02/2005. EXT.P8: COPY OF ORDER IN I.A.NO.385/2005 IN O.S.NO.47/2005 OF THE MUNSIFF'S COURT, PUNALUR DTD. 09/02/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.28846 OF 2007 =========================== Dated this the 22nd day of July, 2008 JUDGMENT Petitioner is the first defendant in O.S.47/2005 on the file of Munsiff Court, Punalur. Second respondent is the husband of the petitioner and the second defendant in the suit. Suit was filed for a declaration that the decree obtained by petitioner in O.S.308/2002 is not binding on the first respondent or the plaint schedule property and for a permanent prohibitory injunction. Petitioner filed I.A.385/2005 an application for considering the question of maintainability of the suit contending that the suit is barred under section 47 of Code of Civil Procedure. Under Ext.P8 order, learned Munsiff found that though a decree was obtained by petitioner against Mohanan and Poulose, first respondent is not a party to the suit and therefore Section 47 has no application. It is challenged in this petition filed under W.P.(C)28846 2 Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel argued that respondents are claiming right to the plaint schedule property from Mohanan one of the judgment debtors in O.S.308/2002 and petitioner filed E.A.31/2005 an application under Rule 97 and 99 of Order XX1 of Code of Civil Procedure raising the very same contentions raised in the suit and the question whether the decree in O.S.308 of 2002 is binding on first respondent or not is to be determined in E.A.31/2005 and though respondents are not parties to O.S.308/2002, as they are claiming title under the judgment debtors in that suit, the decree binding on them and all the questions raised in the suit are to be agitated in execution of the decree and not by a separate suit as provided under section 47 and therefore the order is to be quashed. 4. Learned counsel appearing for first respondent argued that Section 47 has no W.P.(C)28846 3 application to the facts of the case. It was argued that first respondent purchased the plaint schedule property in O.S.47/2005 from Mohanan as per document No.2621/2002 dated 10.7.2002 and though the assignor Mohanan is one of the judgment debtors in O.S.308/2002, the right transferred by Mohanan under the said document is the one obtained under document 2475/2000 from Chellappan and the right claimed by petitioner from Mohanan and Poulose is not the right obtained by Mohanan from Chellappan but Dawood the brother of Chellappan who obtained the right under a partition deed of 1981 and therefore first respondent cannot be an assignee of the judgment debtor in O.S.308/2002 and the properties are different and in such circumstance Section 47 has no application. As rightly pointed out by learned counsel appearing for first respondent, unless the property claimed by petitioner is the suit property in O.S.308/2002 and that too claimed under the judgment debtor in that suit, Section 47 has no application. In such W.P.(C)28846 4 circumstances, I find no illegality or irregularity in Ext.P8 order. True, the question to be agitated in E.A.31/2005 and O.S.47/2005 are identical. But the maintainability of the suit was not challenged on the ground that a petition under Rule 97 of Order XX1 of Code of Civil Procedure is pending. Learned counsel appearing for petitioner then submitted that learned Munsiff may be directed to dispose the suit and E.A.31/2005 as expeditiously as possible. In such circumstance, learned Munsiff is directed to dispose the suit and E.A.31/2005 as expeditiously as possible, at any rate, within ten months from the date of receipt of a copy of the judgment. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006