IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 OP(C).No. 415 of 2011(O) ------------------------ OS.29/2003 OF PRL.SUB COURT,KOTTAYAM .................... PETITIONER : ------------------- GRACY XAVIER, 43 YEARS, W/O.XAVIER ZAKARIAH, MAMPRA HOUSE, KUMARA NELLOOR, PERUMPAIKAD VILLAGE, KOTTAYAM. BY ADV. SRI.V.N.SASIDHARAN RESPONDENT(S): --------------- 1. ST.MARY RUBBERS, REPRESENTED BY T.P.POTHAN, THEKKENEELETTU HOUSE, KEEZHUKUNNU, MUTTAMBALAM VILLAGE, KOTTAYAM DISTRICT, PIN 686 004. 2. XAVIER ZAKARIAH @ JIMMY ZAKARIAH, S/O.M.M.ZAKARIAH, AGED 54 YEARS, PROPRIETOR, MAMBRA RUBBERS, RESIDING AT MAMBRA HOUSE, KUMARANELLOR P.O., POERUPAIKAD VILLAGE, KOTTAYAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------ O.P.(C) No.415 of 2011 O ------------------------------------- Dated this the 2nd day of February, 2011 JUDGMENT The first respondent filed O.S.No.29 of 2003 on the file of the Principal Sub Court, Kottayam, against the second respondent for realisation of money. A decree was passed on 19.1.2004 for a sum of Rs.19,05,237.50 together with interest. The first respondent filed Execution Petition. It is stated that an item of immovable property was sold in court auction on 7.8.2008 and it was purchased by the decree holder. The decree holder filed E.A.No.181 of 2009 for delivery. The court below passed Exhibit P5 order dated 21st December, 2010 directing to issue delivery warrant for effecting delivery of the property. Exhibit P5 order as well as Exhibit P2 sale certificate are challenged by the petitioner, who is the wife of the judgment debtor. 2. According to the petitioner, the property in O.P.(C) No.415 of 2011 2 question was transferred to her by the second respondent as per Exhibit P1 settlement deed dated 17.7.2002. The petitioner was the owner of the property at the time of court auction sale. The judgment debtor had no title to the property and therefore, the sale is invalid. It is submitted that pursuant to Exhibit P2 sale certificate, the decree holder is not entitled to get delivery. 3. It is not clear whether the judgment debtor had put forward a contention that the property was transferred to his wife even before filing the suit. It is also not clear whether the trial court or the executing court had occasion to consider that contention. 4. The learned counsel for the petitioner submitted that the petitioner has filed a claim petition before the executing court on 1.2.2011. The petition is not seen produced in this Original Petition. 5. The petitioner is not entitled to get the reliefs as prayed for in the Original Petition. The remedy of the O.P.(C) No.415 of 2011 3 petitioner is to file an application under Rule 97 of Order 21 before the executing court or else, if the petitioner claims that she is the owner of the property, she could also resist the delivery in which case the matter will be reported to the executing court and appropriate proceedings will be initiated. The contentions raised in this Original Petition can be considered only by the executing court in appropriate proceedings. The Original Petition is not maintainable for the aforesaid reliefs. Accordingly, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl