IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 W. P(C).No. 30265 of 2008(C) ------------------------------ AGAINST THE ORDER DATED 04/10/2008 IN EP.147/2008 IN OS.152/1996 OF PRL.M.C.KOZHIKODE-I .................... PETITIONER : --------------------- T.M.SHAFI, AGED 49 YEARS, S/O.MOHAMMED, MUSLIM, KOMBAMPARA, KALANAD VILLAGE, KASARAGOD TALUK AND DISTRICT-1, P.O.KALNAD BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: --------------------- 1. C.L.KHADERKUNHI, AGED 55 YEARS, S/O. MOHAMMED, MUSLIM, LANDHOLDER R/AT DESHYATH OF CHEMMANAD VILLAGE & POST KASARAGOD TALUK & DISTRICT. 2. N.BABU, AGED 61 YEARS, S/O.CHOMA, RESIDING AT PUTHARIYADUKAM, THEKKIL VILLAGE & POST, KASARAGOD TALUK AND DISTRICT. ADV. SRI.V.V.ASOKAN - R1 SMT.S.AMINA - R1 SRI.V.T.MADHAVANUNNI - R2 SRI.V.A.SATHEESH- R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W. P(C).No. 30265/ 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE PLAINT IN O.S. NO. 152/1996 DATED 29/05/1996 BEFORE THE MUNSIFF COURT, KASARAGOD. EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATEMETN IN O.S NO. 152/1996 BEFORE THE MUNSIFF COURT, KASARAGOD. EXHIBIT P3 : TRUE COPY OF THE JUDGMENT IN O.S NO. 152 /1996 BY THE MUNSIFF COURT, KASARAGOD. EXHIBIT P4 : TRUE COPY OF THE JUDGMENT AND DECREE IN A.S. NO. 175/2002 BY THE ADDL. DISTRICT COURT, KASARAGOD. EXHIBIT P5 : TRUE COPY OF THE JUDGMENT IN R.S.A. 772 OF 2007 BY THIS HONOURABLE COURT. EXHIBIT P6 : TRUE COPY OF THE E.P. 147 OF 2008 IN O.S. 152/1996 BEFORE THE MUNSIFF COURT, KASARAGOD. EXHIBIT P7 : TRUE COPY OF THE APPLICATION IN E.A. NO. 328/2008 IN E.P. NO. 147/2008 BEFORE THE MUNISIFF COURT, KASARAGOD. EXHIBIT P8 : TRUE COPY OF THE COUNTER IN E.A. NO. 317/2008 IN E.P. NO. 147/2008 BEFORE THE MUNSIFF COURT, KASARAGOD. EXHIBIT P8(a) : TRUE COPY OF THE COUNTER IN E.A. NO. 328/2008 IN E.P. 147/2008 BEFORE THE MUNSIFF COURT, KASARAGOD. EXHIBIT P9 : TRUE COPY OF THE ORDER IN E.A. NO. 328/2008 IN E.P. NO. 147/2008 AND E.A. 328/2008 IN E.P NO. 147/2008 BY THE MUNSIFF COURT, KASARAGOD. /TRUE COPY/ P.A TO JUDGE scm K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 30265 of 2008 ------------------------------ Dated this the 14th day of November, 2008 JUDGMENT Petitioner is the second defendant in O.S. No.152 of 1996 on the file of the Munsiff's court, Kasaragod. It is submitted that the suit was one instituted by the first respondent for specific performance of an agreement for sale entered into by him with the 2nd respondent/1st defendant in the suit. It is also alleged in the plaint that in violation of the agreement to sell the property to him, the first defendant transferred the property to the second defendant. The suit was dismissed by the trial court. In appeal, by Ext. P4 judgment first appellate court decreed specific performance directing the first defendant to execute and register the sale deed regarding the schedule property in favour of the appellant/plaintiff after receiving balance consideration of Rs.250/- and failing which allowing the plaintiff to get Sale deed executed through court. The decree did not provide for anything else. The first defendant filed R.S.A No.772 of 2007 against the decree in the suit and second defendant who is the petitioner herein filed R.S.A. No.711 of 2008 before this court. R.S.A 772 of 2007 is stated to have been dismissed in limine vide Exhibit P5 judgment. Petitioner was the W.P(c) No. 30265/2008 2 second respondent in the said R.S.A. When R.S.A was dismissed, he moved Review Petition No. 796 of 2008 therein advancing his contentions and claiming right on the basis of sale deed executed by the first defendant in his favour. It is submitted that the said Review Petition No. 796 of 2008 is dismissed by this court directing the petitioner herein/the second respondent in R.S.A. No. 772 of 2007 to agitate his claim in R.S.A No.711 of 2008 filed by him. It is submitted that R.S.A. No.711 of 2008 is pending before this court and is not disposed of. If so, obviously petitioner can agitate his rights in R.S.A No.711 of 2008. All the same, he also filed a claim petition and an obstruction petition before the execution court, when the first respondent/decree holder moved for execution advancing claim to the schedule property on the ground that he has purchased property from the first defendant in the suit. Those petitions are E.A. No.317 of 2008 and 328 of 2008 filed invoking provisions under Order XX1 Rule 97,98 and 99 of Code of Civil Procedure. The execution court took the view that being defendant in the suit he would be bound by the decree and in any event he cannot advance a claim to the decree schedule property invoking Order XX1 Rules 97,98 and 99 of the Civil Procedure Code and dismissed the claim petitions as not maintainable vide Ext.P9 order. It is the correctness of W.P(c) No. 30265/2008 3 the Exhibit P9 order that is assailed by the petitioner in this writ petition, wherein he has prayed for quashing of Exhibit P9 and for direction being given to the Munsiff Court, Kasaragod to take back Exhibit P7 and pass orders on merits and keep in abeyance all execution proceedings in Exhibit P6. 2. The dismissal by the court below of Exhibit P7 claim petition filed by the petitioner/second defendant by Exhibit P9 order, as being not maintainable cannot be faulted as he was a defendant in the suit bound by the decree. But all the same, being the second defendant in the suit and having been impleaded as judgment debtor in Exhibit P6 execution petition, the petitioner/2nd defendant has all rights to resist the execution of decree by advancing all contentions available to him, otherwise than resorting to Rules 97, 98 and 99. If so advised he may file objection to the execution petition whereupon the court below shall be bound to consider those contentions on merit. He shall also be entitled to advance all his contentions assailing the decree passed by the first appellate court in R.S.A. 711 of 2008 filed by him if that right is reserved by the order of this court passed in R.P.No.796 of 2008 in R.S.A.No.772 of 2007, as submitted and as stated in paragraph 6 of statement of facts filed in this writ petition. W.P(c) No. 30265/2008 4 When those remedies are open, there is no scope for this court to interfere exercising jurisdiction in this writ petition, especially, when Exhibit P9 order dismissing the claim petition as not maintainable, cannot be faulted in the circumstances. 3. In the result, I dismiss this writ petition. If the petitioner/second defendant files any objection to the executability of the decree before the execution court, the court shall consider those objections on merits and dispose it before ordering delivery of the property to the decree holder. With the above direction, this writ petition is disposed of. Petitioner to produce a copy of this judgment before the execution court to enable that court to comply with the directions. K.P. BALACHANDRAN, JUDGE scm