IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 OP(C).No. 3078 of 2011(O) ------------------------------------- EP.99/1999 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONERS: ---------------------- 1. KUTTY, W/O.KUTTAN,MANNANETHU,EREZHA, VADAKKUMMURI,KUNNAMANGALAM VILLAGE. 2. CHELLAPPAN, S/O.KITAN,MANNANETHU,EREZHA, VADAKKUMMURI,KANNAMANGALAM VILLAGE. 3. THANKAPPAN KITAN, S/O.KITAN,MANNANETHU EREZHA, VADAKUMMURI,KANNAMANGALAM VILLAGE. 4. DIVAKARAN KITAN, S/O.KITAN,MANNANETHU EREZHA, VADAKUMMURI,KANNAMANGALAM VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): -------------------------- 1. RAMAN RAGAVAN, VALLIATHU VEETTIL,PELA MURI, KANNAMANGALAM VILLAGE,FROM MANNAAANETHU EREZHA, VADAKUMMURI,KANNAMANGALAM VILLAGE, KANNAMANGALAM PIN 690 109. 2. POULOSE KUNJU, VALLIATHU VEETTIL,PELA MURI, KANNAMANGALAM VILLAGE,FROM MANNAAANETHU EREZHA, VADAKUMMURI,KANNAMANGALAM VILLAGE, KANNAMANGALAM PIN 690 109. 3. KUTTI THANKAMMA,VALLIATHU VEETTIL, PELA MURI,KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA,VADAKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM PIN 690 109. 4. KUTTY RAVI, S/O.KUTTY THANKAMMA VALLIATHU VEETTIL, PELA MURI,KANNAMANGALAM VILLAGE, FROM MANNAANETHU EREZHA,VADAKUMMURI, KANNAMANGALAM VILLAGE,KANNAMANGALAM PIN 690 109. 5. KUTTY REGHU, S/O.KUTTY THANKAMMA,VALLIATHU VEETTIL,PELA MURI, KANNAMANGALAM VILLAGE,FROM MANNAAANETHU EREZHA, VADAKUMMURI,KANNAMANGALAM VILLAGE, KANNAMANGALAM PIN 690 109. 6. KUTTY REMA, D/O.KUTTY THANKAMMA,VALLIATHU VEETTIL,PELA MURI, KANNAMANGALAM VILLAGE,FROM MANNAAANETHU EREZHA, VADAKUMMURI,KANNAMANGALAM VILLAGE, KANNAMANGALAM PIN 690 109. ADV. SMT.ASHA ELIZABETH MATHEW FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3078 OF 2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE I.A.2504/2003 IN O.S.NO.398/1988 DATED 15.07.2003. EXT.P2 TRUE COPY OF THE APPLICATION FOR STAY VIDE I.A.NO.655/2011 DT.22.3.2011. EXT.P3 TRUE COPY OF THE JUDGMENT DT.27.03.1991 IN O.S.NO.398/1988 OF THE HONOURABLE MUNSIFF COURT AT MAVELKARA. EXT.P4 TRUE COPY OF THE COMMON OBJECTION AGAINST I.A.NO.2504/2003 AND I.A.NO.655/2011. EXT.P5 TRUE COPY OF THE ORDER DT.03.08.2011 I.A.NO.2504/2003 IN O.S.NO.398/1988. EXT.P6 TRUE COPY OF THE ORDER IN EXECUTION PETITION VIDE E.P.NO.99/1999 DATED 25.8.2011. EXT.P7 TRUE COPY OF THE DECREE IN O.S.NO.398/88 DATED 6.11.1993. RESPONDENTS' EXHIBITS: NIL THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3078 of 2011 ==================================== Dated this the 28th day of September, 2011 J U D G M E N T This Original Petition is filed by the petitioners challenging Ext.P6, order for delivery of property in E.P. No.99 of 1999 in O.S. No.398 of 1988 of the court of learned learned Munsiff, Mavelikkara. Petitioners are the legal representatives of the 8th defendant in the suit who died before passing the preliminary decree. Petitioners were impleaded as additional defendants 9 to 12 in the suit and thereafter preliminary decree and judgment were passed on 27.03.1991. It is stated that petitioners 2 to 4 were not made parties either in the final decree or E.P. No.99 of 1999. Learned counsel for petitioners contends that in view of the finding entered by the learned Munsiff in the preliminary judgment in paragraph 13, petitioners are entitled to the share of deceased 8th defendant. It is also the contention of petitioners that the property ordered to be delivered takes in the property of the 8th defendant. Further contention is that petitioners had filed I.A. No.2504 of 2003 to pass a supplementary preliminary decree, that application was dismissed and petitioners have challenged that O.P(C) No.3078 of 2011 -: 2 :- order in A.S. No.171 of 2011 but since the appeal is filed with a delay of 20 days, stay of execution could not be obtained. In the circumstances it is prayed that Ext.P6, order is liable to be set aside. 2. Respondents 2 and 3 who are the co-defendants are reported dead. But the presence of their legal representatives is not necessary since the dispute in this proceeding is between the first respondent and petitioners. 3. Learned counsel for respondents 1 and 4 to 6 contended that there is no substance in the objection raised by the petitioners to Ext.P6, order. It is pointed out that in the preliminary decree, share is allotted only to the first respondent- plaintiff and hence the final decree and execution petition concerned only the share allotted to the first respondent. It is contended that the objection that petitioners 2 to 4 were not made parties in the final decree application and execution petition was raised by the first petitioner in E.P. No.99 of 1999 which was found against by the executing court as per order dated 17.01.2000 and that was confirmed by this Court in the order dated 22.03.2000 in C.R.P. No.330 of 2000. It is submitted by learned counsel that though petitioners had challenged the O.P(C) No.3078 of 2011 -: 3 :- final decree in A.S. No.157 of 1994 before the learned Additional District Judge, Mavelikkara also on the ground that petitioners 2 to 4 are not made parties in the final decree, that appeal was dismissed for non-prosecution on 12.03.1999 and the present objection to Ext.P6, cannot be sustained. 4. So far as the question whether petitioners are entitled to get a supplementary preliminary decree in view of the observation that trial court has made in the preliminary judgment is concerned, it is not necessary for me to go into that question since as pointed out by learned counsel, petitioners have filed A.S. No.171 of 2011 though with a petition to condone the delay challenging the order disallowing the prayer to pass passing supplementary preliminary decree. 5. Now I am concerned with the question whether non- impleadment of petitioners 2 to 4 in the final decree application and execution petition is fatal to Ext.P6, order. It is seen from the preliminary judgment that share was allotted only to the first respondent. Preliminary judgment stated that Item No.4 in Ext.A1, partition deed shall be demarcated and it shall be separately allotted to the first respondent who was directed to deposit a certain amount in court being his share in the mortgage O.P(C) No.3078 of 2011 -: 4 :- money and who was given liberty to file application for passing final decree. 6. Assuming that petitioners 2 to 4 are not made parties in the final decree application and execution petition, I must bear in mind that they are claiming right under the 8th defendant and representing the estate of the deceased 8th defendant, first petitioner who is also a legal representative of the 8th defendant was on record in the final decree application and execution petition as a party and that amounts to substantial representation of the estate of deceased 8th defendant as all the legal representatives of the deceased 8th defendant take his estate as joint tenants, with community of interest, title and possession. 7. I must also bear in mind that the objection regarding non-impleadment of petitioners 2 to 4 in the final decree application and execution petition was raised by the first petitioner in E.P. No.99 of 1999, found against and confirmed by this Court in the order dated 22.03.2000 in C.R.P. No.330 of 2000. A further fact I should bear in mind is that though petitioners challenged the final decree in A.S. No.157 of 1994, that appeal was dismissed for non-prosecution. Thus the final decree has become final. In view of all the above, challenge to O.P(C) No.3078 of 2011 -: 5 :- Ext.6, order cannot stand. However, since it is pointed out that petitioners have filed A.S. No.171 of 2011 challenging the order refusing to pass a supplementary preliminary decree, it is directed that delivery of the property pursuant to Ext.P6, order shall be subject to the result of that appeal to the extent the decision in the appeal affected the delivery. First respondent is directed not to alienate or encumber the property for a period of two months from this day or till the appellate court passed appropriate orders in A.S. No.171 of 2011, whichever is earlier. This Original Petition is disposed of with the above directions. THOMAS P. JOSEPH, JUDGE. vsv