IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 19840 of 2009(O) --------------------------------------- [EA.NO. 5/09 IN EP .NO.44/02 IN OS.NO.57/1984 OF MUNSIFF COURT, PUNALUR] .................... PETITIONER: ------------------- BALAN PILLAI, S/O.PARAMESWARAN PILLAI, THOTTUMKARA PUTHEN VEEDU, PANAYAMCHERRY MURI, ANCHAL. BY ADV. SRI.M.S.UNNIKRISHNAN. RESPONDENT: ---------------------- GOPALA PILLAI, S/O.PARAMESWARAN PILLAI, VILAYIL VEEDU, PANAYAMCHERRY MURI, ANCHAL. BY ADV. SRI.SUBHASH CYRIAC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19840/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 26/07/1989 IN O.S. NO. 57/1984 OF THE MUNSIFF'S COURT, PUNALUR. EXT.P.2: COPY OF THE DECREE DTD. 23/05/02 IN A.S. NO. 11/1990 OF THE SUB COURT, KOTTARAKKARA. EXT.P.3: COPY OF THE PETITION DTD. 08/01/09 NUMBERED AS E.A. NO. 5/2009 FILED BY THE PETITIONER. EXT.P.4: COPY OF THE OBJECTION DTD. 17/01/2009 TO EXT.P.3 FILED BY THE RESPONDENT. EXT.P.5: COPY OF THE ORDER DTD. 03/07/2009 OF THE MUNSIFF'S COURT, PUNALUR. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C) NO. 19840 OF 2009 ------------------------------- DATED THIS THE 30TH DAY OF NOVEMBER, 2010 JUDGMENT Ext.P5 order passed by the execution court is under challenge. Petitioner herein is the judgment debtor in E.P.No.44/02002 in O.S.No.57/1984 on the file of the Munsiff's Court, Punalur. He is the petitioner in E.A.No.5/2009. Ext.P5 is the order dismissing the said E.A. 2. Petitioner is the plaintiff in O.S.No.57/1984 filed for a decree of injunction restraining the defendant from obstructing the plaintiff's possession and enjoyment of the plaint schedule property. Petitioner is the lst plaintiff and his wife is the 2nd plaintiff in the suit. Defendants in the suit are the brother and sister respectively of the lst plaintiff in the suit. Defendants filed written statement and counter claim. Counter claimants prayed for a decree of redemption of mortgage and also for an injunction in respect of items 1 to 4 scheduled to the written statement. The suit -2- WP(C).No.19840/2009 was dismissed and the counter claim was decreed. Ext.P1 is the judgment. The trial court passed a decree of redemption of mortgage of the property in favour of the 2nd defendant in the suit. The appeal preferred against the said judgment and decree was also dismissed. Ext.P2 is the decree in A.S.No.11/90. The second appeal preferred against the judgment and decree passed by the Appellate Court is dismissed as withdrawn today, since the appellant seeks to withdraw the second appeal. 3. The 2nd defendant decree holder filed E.P.No.44/2002. Pending execution petition the decree holder died. The lst defendant who is one of the brother, filed an application for impleding claiming that on the death of the decree holder one half right devolved on him. The impleding petition was allowed. The deceased decree holder left behind as the legal heirs not only the lst defendant but also the lst plaintiff and three other brothers. The deceased decree holder/2nd defendant left behind five brothers, who are entitled to 1/5 share each. Three brothers are not in the party -3- WP(C).No.19840/2009 array. The learned counsel for the petitioner contended that the lst judgment debtor-mortgagee is one of the legal heirs of the deceased mortgagor, that there is an extinguishment of the mortgage and therefore, the decree holder is not entitled to get delivery of the mortgage property. It is submitted that in such circumstances, the remedy open to him is to file a suit for partition and separation of his share. 4. The judgment debtor filed E.A.No.5./09. A copy of the E.A. is produced as Ext.P3. Paragraph 4 of Ext.P3 is extracted as follows: “That the lst defendant got himself impleaded in the Execution Petition as the legal heir of the deceased Omanakutty Amma for redeeming the mortgage in the entire property. The first judgment debtor being the legal heir of the deceased Omanakutty Amma is also equally entitled in the schedule property along with first defendant Gopala Pillai. In such circumstances, said Gopala Pillai is not entitled to redeem and get delivery of entire property without effecting partition through a court of law.” -4- WP(C).No.19840/2009 5. The judgment debtor/petitioner contended that in the circumstances the additional decree holder is not entitled to redeem and get delivery of the entire property without effecting partition through a court of law. Therefore, the judgment debtor in E.A.No.5/09 sought for dismissal of the execution petition. The execution court did not consider the contentions raised by the judgment debtor in the right perspective. It is a case where the decree holder died during the pendency of the execution petition. The decree holder is none other than the sister of the lst judgment debtor. As I said earlier, the decree holder is survived by five brothers including the additional decree holder and the judgment debtor-Balan Pillai. In view of the death of the decree holder (2nd defendant) it is contended by the judgment debtor in E.A.No.5/09 that the additional decree holder alone is not entitled to redeem and get delivery of the entire property without effecting partition through a court of law. This is a case where the additional decree holder sought to dispossess a co-owner by seeking delivery of the -5- WP(C).No.19840/2009 property. 6. The legal position in a similar case was explained by the Apex Court in the decision reported in Jagdishdutt and another v. Dharampal and others ((1999) 3 SCC 644). This Court referred the said decision in the judgment dated 25/11/20210 in W.P.(C). No.33238/2007 (Peethambaran v. Dileepkumar Panicker and others). The petitioner shall produce a copy of the judgment in W.P. (C).No.33238/2007 before the court below. 7. The execution court shall re-consider the matter in the light of the observations made above and in the light of the decisions referred above. In the circumstances, Ext.P5 order is set aside. There will be a direction to the execution court to consider the issues involved and pass appropriate orders within a period of six months from the date of receipt of the copy of this judgment. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv.