IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 CRP.No. 565 of 2009() --------------------- AGAINST THE ORDER DATED 10/09/2009 IN EP/630/2003 IN OS.273/1995 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER ------------------------------- JOHN T.SAM, AGED 41 YEARS, S/O.SAMUEL JOHN, PALATHRA HOUSE, SRM ROAD,THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE KANAYANNUR TALUK, KOCHI-18. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS -------------------------- 1. K.SUSAN JOSEPH, LILLY DALE, UNDAPLAVU, PODIYADI PO, PATHANAMTHITTA,(NOW RESIDING AT E3,VAIBHAV RESIDENCY, KAGADASPURA 4TH CROSS,C.V.RAMAN NAGAR, BANGALORE- 560 093. 2. K.SOUMINI JOSEPH, LILLY DALE, UNDAPLAVU, PODIYADI PO, PATHANAMTHITTA,(NOW RESIDING AT E3,VAIBHAV RESIDENCY, KAGADASPURA 4TH CROSS,C.V.RAMAN NAGAR, BANGALORE- 560 093. 3. K.ZACHARIA ZACHARIA, KARINGATTIL HOUSE, STATION CROSS ROAD, KOCHIN-35. 4. MARY ABRAHAM, CHAKALAYIL HOUSE, ARTHOTTY JUNCTION, KOTTAYAM, 5. THANKAMMA CHERIAN, J.P.NAGAR, STAGE II,MUTTOOR JUNCTION, THIRUVALLA,. KARINGATTIL HOUSE, STATION CROSS ROAD, KOCHIN-35 6. K.SUSAMMA ZACHARIA,KARINGATTIL HOUSE, STATION CROSS ROAD, KOCHIN-35 7. JOLLY CHERIAN, SHALEM, VAYALIL ROAD, THIRUVAMKULAM PO, ERNAKULAM DISTRICT. 8. SUSAN K.GEORGE, SHALEM, VAYALIL ROAD, 0 THIRUVAMKULAM PO, ERNAKULAM DISTRICT. ADV. SRI.N.C.SAJITH FOR R1 & R2 SRI.V.L.SHENOY FOR R3,4,5,6 SRI.L.JAYAWANTH FOR R3,4,5,6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- C.R.P.No.565 OF 2009 -------------------------------- Dated this the 4th day of December 2009 ---------------------------------------------------------- ORDER Revision is directed against an order passed by the learned Sub Judge, Ernakulam in E.A No.720 of 2009 in E.P No.630 of 2003 in O.S No.273 of 1995 on the file of that court. The decree executed in the above suit is one passed in a suit for partition. Revision petitioner who claims of purchasing two plots under two registered deeds from 3rd and 4th plaintiffs who had been allotted 'A' and 'B' plots as shown in the plaint appended to the final decree moved an application in the pending execution petition seeking his impleadment as additional 8th respondent, and delivery of the plots 'A' and 'B' properties to him. He has also produced the copies of the sale deeds purported to have been executed in his favour by the 3rd and 4th plaintiffs. That application was filed quoting the provision under Order 21 Rule 16 and also Order 1 of Rule 10(2) of the Code of Civil C.R.P.No.565 OF 2009 Procedure. That application was opposed to by respondents 3 to 6 filing separate objections questioning the entitlement of the petitioner to be impleaded as an additional respondent and get delivery of the properties as canvassed. The learned Sub Judge after hearing both sides dismissed the application of the revision petitioner holding that his remedy is to file a separate suit and establish his right claimed under the sale deeds. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. Perusing the order passed by the learned Sub Judge impugned in the revision, I find, more importance was given to the provision quoted by the petitioner than the pith and substance of the case canvassed by him for the relief claimed under his petition. His application was filed under Order 21 Rule 16 of the Code of Civil Procedure which is applicable only in the case of an assignment of the decree, it appears, impressed the learned Sub Judge to conclude that the remedy of the C.R.P.No.565 OF 2009 petitioner is not under that rule but to establish his right by way of a separate suit. The learned Sub Judge, it appears, has omitted to consider the scope and impact of the explanation to order 21 Rule 16 of the Code of Civil Procedure which spell out in mistakable terms that transfer of a property covered by the decree has a right to move under Section 146 of the Code of Civil Procedure for establishing his right and he need not apply under the above rule. Needless to point out that it is not the wrong quoting of the provision which is to be given importance to consider the relief canvassed by the party before the court. In the present case, the reliefs claimed by the petitioner was based on the sale deeds purported to have been executed in his favour by two of the sharers who had been allotted plots under the final decree and his application should have been moved under Section 146 of the Code of Civil Procedure and not under the provisions wrongly quoted by him. The learned counsel for the respondents 3 to 6 submitted that as regards the transfer by which the petitioner has claimed C.R.P.No.565 OF 2009 right over plot 'A' and 'B' they have serious objections and even of its legality, propriety and correctness are impeached by them on various grounds. Whatever objections these respondents have against the transfer, they can canvass before the execution court while his application is being considered, but of course subject to what is provided by law. The impugned order in the given facts of the case cannot be sustained and it is liable to be set aside. I do so. The learned Sub Judge is directed to consider the application moved by the revision petitioner as one filed under Section 146 of the Code of Civil Procedure and dispose it after considering the objections, if any, canvassed by the respondents 3 to 6 in accordance with law. S.S.SATHEESACHANDRAN, JUDGE vdv