IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 Ex.S.A.No. 16 of 2005() ---------------------- CMA.7/2004 of DISTRICT COURT,TRIVANDRUM E.A.No.282/2003 in OS.80/1998 of III ADDL.MUNSIFF 'S COURT,TRIVANDRUM .................... APPELLANT(APPELLANT IN C.M.A./PETITIONER IN E.A.NO.282 OF 2003 (STRANGER) ------------------------------------------------------------------------------------------------------------------------- SIVALILA, D/O.SYAMALAKUMARI, T.C.NO. XXII/1015/2, ATTUKAL, MANACAUD VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT/RESPONDENT IN C.M.A./COUNTER PETITIONER IN E.A.NO.282 OF 2003/PLAINTIFF(DECREE HOLDER) ------------------------------------------------------------------------------------------------------------------ C.DAKSHAYANI, D/O.CHINNA, T.C.NO. 11/728, NEAR P.M.G. JUNCTION, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. '' SRI.T.G.SUNIL THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7/ 9/ 2011 THE COURT ON 07/09/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Ex.S.A. No. 16 OF 2005 =========================== Dated this the 7th day of September,2011 JUDGMENT Appeal is filed by the petitioner in E.A.282/2003 in O.S.80/1998 on the file of III Additional Munsiff Court, Thiruvananthapuram. E.A.282/2003 was filed under Rule 97 of Order XX1 of Code of Civil Procedure claiming right in the decree schedule property contending that the decree cannot be executed as the D schedule property was settled in her name by her mother the judgment debtor. The petition was dismissed. C.M.A.7/2004 filed by the appellant challenging that order was also dismissed. Appeal was admitted formulating the following substantial questions of law. 1.Were the courts below justified in venturing into merits of the 2 appellant's claim when it prima facie entered into a finding that the claim petition is not maintainable? 2. Is the remedy under Order 21 Rule 97 of the Code of Civil Procedure limited to a suit for recovery/dispossession alone? 2.Learned counsel appearing for the appellant submitted that the records forwarded from the executing court establishes that the decree was executed and full satisfaction of the decree was recorded on 9.1.2004. Though I.A.2078/2005 was filed to stay execution of the decree in the appeal, no interim order was granted. Consequently executing court has already executed the decree and full satisfaction of the decree was recorded on 9.1.2004. The execution sought for by the decree holder was only the decree for mandatory injunction to remove the obstruction caused to the E schedule way. That portion of the decree was already 3 executed as on 9.1.2004, appeal is dismissed as infructuous. M.SASIDHARAN NAMBIAR JUDGE tpl/-