IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 FAO.No. 122 of 2011() --------------------- AGAINST THE ORDER IN IA 2072/10 IN IA 238/10 IN OS.105/1996 of SUB COURT, TIRUR AS.67/2010 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI .................... APPELLANT/1ST RESPONDENT/1ST RESPONDENT ----------------------------------------------------------------------- THELATH AHAMMED, S/O.ALASSAN RAYIRIMANGALAM AMSOM DESOM TIRUR TALUK, PO RAYIRIMANGALAM MALAPPURAM DISTRICT BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA RESPONDENTS/APPELLANT & 2ND RESPONDENT/PETITIOENR & 2ND RESPONDENT: -------------------------------------------------------------------------------------------------------------------------- 1. BAPPUTTY,, S/O.CHATTACHEENTEPURAKKAL ISMAIL RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM TIRUR TALUK, MALAPPURAM DISTRICT 2. HAJIRA MOL, CHATTACHINTEPURAKKAL RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM TIRUR TALUK, MALAPPURAM DISTRICT ADV. SRI.P.CHANDRASEKHAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- F.A.O. No.122 of 2011 ------------------------------------- Dated this the 18th day of July 2011 Judgment This appeal is directed against an order of remand dated 08.03.2011 in AS No.67/10 on the file of the District Court, Manjeri. 2. OS No.105/96 was a suit for specific performance against the second respondent herein, who is the wife of the first respondent. A decree was obtained by the appellant herein and the decree was got executed through court. When delivery was sought to be attempted, it so happened that the first respondent herein came forward with a petition – IA No.2072/10, seeking to get himself impleaded in the proceedings. His case was that he had advanced the entire money for purchasing the property, though the property was purchased in his wife's name. So, he was the actual owner of the property and his wife had no interest in the property and so execution FAO 122/11 2 cannot proceed. The petition was opposed to by the appellant, pointing out that the intention of the first respondent was to delay the delivery proceedings in the suit which was decreed in 1999. It is also pointed out that in the light of the separate suit having been filed by the first respondent, the present petition for impleading was not maintainable. It is seen from the records that when IA No.2072/10 was taken up for hearing, the learned counsel for the first respondent/petitioner represented that Order 21 Rule 97 CPC would be applicable to the case on hand. The trial court found that there is no material produced by the petitioner in IA No.2072/10 in support of his plea that the property was purchased in his name, utilising his funds and that he was the real owner of the property. Holding so, the petition was dismissed. 3. Against the order dismissing the said IA, it appears that the first respondent filed a writ petition before this court as WP(C) No.19413/10. This court disposed of the said writ petition on 05.08.2010, relegating the first FAO 122/11 3 respondent to proper forum, observing that the proper remedy of the first respondent/petitioner is to file an appeal. Thereafter, the first respondent filed AS No.67/10 before the District Court, Manjeri. The lower appellate court found that no opportunity had been afforded to the parties to adduce evidence in support of their respective pleas and in the light of the nature of the contentions raised by the parties, it is necessary that evidence be adduced in the case. It was also felt that the issues raised have not been properly considered by the trial court and therefore, reconsideration of the matter was necessary. The appeal was accordingly allowed and the matter was remanded to the trial court for fresh consideration after affording an opportunity to the parties to adduce evidence, if any. By way of abundant caution, the lower appellate court directed the trial court to dispose of the case within a period of three months from the date of receipt of records. Hence the second appeal. FAO 122/11 4 4. In this appeal, the following questions of law are raised for consideration : 1.Is the court below justified in remanding the case for fresh consideration in the absence of any prima facie material or evidence produced by the 1st respondent herein in support of his contention ? 2.Is the court below justified in not accepting the contention that the application filed by the 1st respondent was one filed without any bona fides and was liable to be rejected at the threshold ? 3.Are not the provisions of the Benami Prohibition Act applicable to the facts of this case ? 4.Is not the impugned order vitiated for not properly considering the evidence oral and documentary available in this case ? 5. Learned Senior Counsel Sri.T.Krishnanunni, learned counsel for the appellant very vehemently contended that the lower appellate Court was not justified in remanding the matter since there was no prayer before FAO 122/11 5 the trial Court for adducing evidence. It is specifically contended that it was long after the execution proceedings had commenced that the IA was filed. The learned counsel contended that the lower appellate court has not properly considered the contention based on Benami Transaction Prohibition Act. Even going by the provisions of the said Act, the claim petitioner cannot be heard to say that he is the owner of the property. At any rate, there is no justification for the lower appellate Court to have remanded the matter to the trial Court to enable the first respondent to fill in the lacuna. 6. The learned counsel for the respondents, on the other hand, pointed out that the IA filed by the first respondent was dismissed at its threshold, thus depriving the petitioner before the trial Court an opportunity to adduce evidence and establish that the property actually belongs to him. The learned counsel drew attention of this Court to the fact that what is intended in Order 21 Rule 97 CPC is that the holder of a decree seeking delivery or FAO 122/11 6 possession of a property, may file a petition to remove the obstructions. Any person, at that point of time, may make an application to the Court asserting his independent rights and the Court shall proceed to adjudicate the application as if it is a suit and the order passed thereon is treated as a decree. The learned counsel emphasised that the adjudication of a petition under Order 21 Rule 97 CPC has far reaching consequences and pointed out that the petitioner ought to have been given an opportunity to adduce evidence in the case. 7. The decree in this case was passed as early as early as in 1999. Since the judgment debtor did not execute the same, the document was got executed through court. Thereafter, the delivery of the property was sought. Interestingly enough, the first respondent came forward with a petition IA No.2072/10 seeking to get himself impleaded on the party array. At the time of hearing the petition, he submitted that his petition should be treated as one filed under Order 21 Rule 97 CPC. Meanwhile, the FAO 122/11 7 suit has also been filed by them. But, when one goes through Order XXI Rule 97 CPC, it is very evident that any claim referring to the property in respect of which execution has been taken, has to be adjudicated in the same proceedings. 8. In the appeal memorandum before the court below, the first respondent has taken a specific ground that no opportunity was given to him to adduce evidence. One must remember here that the petition filed was one for impleadment. At the time of hearing, a submission was made, pointing out that it should be treated as one under Order XX1 Rule 97 CPC. As rightly pointed out by the learned counsel for the respondents, a petition under Order XXI Rule 97 has to be elaborately considered and it may be necessary to adduce evidence in support of the claim made by the claimant who filed the petition. It is not very clear from the order of the execution court if the parties were given an opportunity to adduce vidence. One must remembr here that the petition filed by the first respondent FAO 122/11 8 was one to gt himself impleaded in the execution proceedings and at the time when the petition was taken for hearing, it was represented that the petition may be treat as one under Order XXI Rule 97 CPC. 9. The lower appellate Court has remanded the matter to enable the parties to adduce evidence in support of their case. One has to notice that having filed a petition under Order XXI Rule 97, he cannot maintain a separate suit. Therefore, the adjudication of the present petition has far-reaching consequences. Under such circumstances, the execution court ought to have given the first respondent an opportunity to adduce evidence in support of his claim. If the lower appellate court felt that the appellant before it had been deprived of such an opportunity, which was unjust, it cannot be found fault with. It could not be said that there is any illegality in the remand order. In fact, the lower appellate court had made adequate safe-guard to ensure that the matter is disposed of as early as possible. FAO 122/11 9 10. No grounds are made out to interfere with the order of the lower appellate Court. However, it is made clear that all the contentions will be available to the appellant before the trial Court when the matter is decided afresh by the said Court. The parties shall appear before the trial Court on 03.08.2011. The trial Court may dispose of the petition as expeditiously as possible, at any rate, within three months from the date of appearance of parties before court. A copy of this order shall be forwarded to the Sub Court, Tirur. P.Bhavadasan, Judge sta FAO 122/11 10 FAO 122/11 11