IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 CRP.No. 279 of 2010() --------------------- AGAINST THE ORDER DATED 07/04/2010 IN EA 74/09 IN EP 359/05 IN OS.885/1960 of II ADDL.MUNSIFF COURT,TRIVANDRUM .................... REVN. PETITIONER/PETITIONER/22ND DECREE HOLDER --------------------------------------- EDWIN.C.PEREIRA, S/O.PEREIRA, AGED 57 YEARS, T.C.32/2713, KAIRALI LANE, CHACKAI, THIRUVANANTHAPURAM DISTRICT. BY ADV. SMT.DAISY A.PHILIPOSE RESPONDENTS/RESPONDENTS: --------------- 1. SREEBALA, W/O.RAGHUVARAN NAIR, ANU BHAVAN, PANNAMCHUNDU, VITHURA P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. 2. PRAMEELA, D/O.SARADAMMA, CHITHRALAYAM HOUSE, KOLLAMKAVU KODIPPURAM, VADAKKUM KARA MURI, KARUPUR VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. 3. JAYACHANDRAN NAIR, S/O.BHASKARAN NAIR, SARADA BHAVAN, PANNAMCHUNDU, VITHURA P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. SRI.DENIZEN KOMATH(CAVEATOR) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.No.272 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : CERTIFIED COPY OF THE ORDER IN E.A.No.74 OF 2009 IN E.P.No.359 OF 2005 IN O.S. No.885 OF 1960 ON THE FILES OF the 2nd ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM RESPONDENTS' EXHIBITS : NIL True copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.279 of 2010 --------------------------------------- Dated this 16th day of June, 2010 ORDER Petitioner in E.A.No.74 of 2009 who is the 22nd decree holder in E.P.No.359 of 2005 in O.S.No.885 of 1960 of the court of learned Additional Munsiff-II, Trivandrum has filed this revision petition against dismissal of E.A.No.74 of 2009. 2. Facts necessary for a decision of this petition are: Petitioner/decree holder No.22 is the holder of a decree for recovery of possession of plaint B and C schedules from the judgment debtors in the case. In the course of execution of that decree, judgment debtors were evicted from the decree schedule properties on 22-02-2007 and the Amin on 23-02-2007 reported delivery of property. Respondents filed E.A.No.359 of 2007 on 21- 03-2007 claiming that property scheduled therein - 2.88 acres in survey 3/1 of Vithura Village belonged to them, the said property is not liable to proceeded with in execution as it is not covered by the decree and contending that the decree does not bind them. That petition was dismissed for default on 11-08-2008. Following that, E.P.No.359 of 2005 was closed recording full satisfaction. Thereafter respondents filed E.A.No.639 of 2008 for restoration of C.R.P.No.279 of 2010 : 2 : E.A.No.359 of 2007 which was dismissed for default. That application was dismissed on 12-11-2008. On 20-01-2009 petitioner/decree holder No.22 filed E.A.No.74 of 2009 seeking restoration of possession of the property scheduled therein stating that on 18-03-2007 respondents trespassed into the property and took possession thereof. That application was resisted by respondents setting up independent title and possession of the said property and claiming that they are not bound by the decree. Executing Court vide impugned order dated 07-04-2010 held that full satisfaction was recorded on 23-02-2007 and the execution petition having been closed, application under Order 21 Rule 97 of the Code of Civil Procedure (for short, “the Code”) is not maintainable. Executing Court observed that there was no application to reopen execution petition (E.P.No.359 of 2005) closed on 11-08-2008 nor was there any submission that there was any mistake in submitting that the decree is satisfied. It was also held that contention of petitioner that he is entitled to exclusion of delay under Section 14(2) of the Limitation Act is not acceptable and that E.A.No.74 of 2009 is barred by limitation. Further finding is that the fact of full satisfaction recorded in the E.P estopped petitioner from claiming relief as per E.A.No.74 of 2009. It is contended by learned counsel for petitioner that executing Court was not correct in treating the application as one under Order 21 C.R.P.No.279 of 2010 : 3 : Rule 97 and Section 151 of the Code though the label of the petition stated so. According to the learned counsel respondents who are pendente lite transferees from an assignee of judgment debtor No.3 are bound by the decree and hence they are liable to be removed under Order 21 Rule 35 of the Code. E.A.No.74 of 2009 comes within the purview of Section 47 of the Code since it is a dispute relating to the execution and satisfaction of the decree between petitioner/decree holder No.22 and assignees from an assignee of judgment debtor No.3. According to the learned counsel for an application under Section 47 of the Code period of limitation is three years as provided under Article 137 of the Limitation Act. Learned Senior Advocate appearing for respondents per contra contend that this revision itself is not maintainable since E.A.No.74 of 2009 is preferred under Order 21 Rule 97 of the Code and hence its adjudication comes under Rule 98, the order of adjudication has the force of a decree and hence is subject to an appeal. It is also the contention of learned Senior Advocate that question of application of Section 14 of the Limitation Act does not arise. According to the learned Senior Advocate application being one under Order 21 of the Code, Section 5 of the Limitation Act has no application. The period of limitation is governed by Article 129 of the Limitation Act and E.A.No.74 of 2009 having not been filed within the time prescribed C.R.P.No.279 of 2010 : 4 : from the date of alleged dispossession (18-03-2007) E.A.No.74 of 2009 is not maintainable. It is contended that at any rate, it is not as if respondents have admitted that the property referred to in E.A.No.74 of 2009 is part of B and C schedule in the decree schedule and in the absence of evidence to show that the property is covered by the decree application in execution is not maintainable and proper remedy of petitioner was to institute a fresh suit based on the cause of action petitioner has alleged. 3. It is not disputed that after the decree schedule property was delivered over to the petitioner on 22-02-2007 full satisfaction was recorded on the E.P on 11-08-2008 and accordingly that E.P.(No.359 of 2005) was closed. It is also not disputed that in the meantime respondents filed E.A.No.359 of 2007 on 29-03-2007 claiming that in so far as property mentioned therein is concerned, they are not bound by the decree since that property is not part of the decree schedule. That application was dismissed for default on 11-08-2008 and the application for restoration was dismissed on 12-11-2008. That was challenged by the respondents in this court in W.P.C.No.3588 of 2008 where also there was also a representation that the decree was fully satisfied as reported in the executing court on 11-08-2008 and accordingly execution petition was closed. In the light of that submission writ petition was disposed of on 09-01-2009. It is thereafter that on 22- C.R.P.No.279 of 2010 : 5 : 01-2009 petitioner has filed E.A.No.74 of 2009. 4. I do not forget that respondents have a contention that property involved in E.A.No.74 of 2009 is not part of the decree schedule. But for the time being I proceed on the basis of averments in E.A.No.74 of 2009 that the said property is part of decree schedule. If that case of petitioner were true it was not necessary for petitioner to invoke Rule 97 Order 21 of the Code as that provision dealt with obstruction by “any person”. Rule 35 of Order 21 deals with obstruction by “persons bound by the decree”. Case of petitioner being that respondents are bound by the decree in that the property involved is part of decree schedule property and respondents being pendente lite transferees, claim of petitioner came under Rule 35 Order 21 of the Code. That being the claim of petitioner, impugned order does not came under Order 21 Rule 98 of the Code and hence is not appealable as if the impugned order has the force of a decree. 5. According to the petitioner, trespass was on18-03-2007 and in the circumstances stated above, full satisfaction was recorded on 11-08-2008. Learned counsel for petitioner contends that it was due to an inadvertent mistake committed by counsel for petitioner in the executing court that full satisfaction was reported, it was so recorded and E.P.No.359 of 2005 was closed. Going by the case of petitioner, this is a dispute between petitioner/decree C.R.P.No.279 of 2010 : 6 : holder No.22 and pendente lite assignees of an assignee from judgment debtor No.3 concerning a portion of the decree schedule property and hence it is a dispute which has to be resolved under Section 47 of the Code. For an application under Section 47 of the Code period of limitation is three years as per Article 137 of the Limitation Act. The alleged dispossession was on 18-03-2007 and E.A.No.74 of 2009 was filed within three years on 20-01-2009. This court in Gopalakrishna Kamath Vs. Bhaskar Rao (1988 (2) KLT 352) held that in a case where there was excess delivery of movables and judgment debtor sought for redelivery of such movables, claim came under Section 47 of the Code and hence pendancy of execution petition is not necessary. In the decision in Raman Vs. Karthikeyan (1984 KLT 1071) it is held that even if the person who claim to be in possession in his own, right and independently of the judgment debtor, but whose claim, is on the fact of it unacceptable and cannot be said to be made in good faith, the court will issue a fresh warrant and will direct delivery of possession by removal of such a person who refuses to vacate the property. There is no bar in taking such a step flowing from either Order 21 Rule 35 or Rule 97 of the Code. The Supreme Court in Brahmdeo Chaudari Vs. Rishikesh Prasad Jaiswal & Another (1997(3) SCC 694) stated that provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of C.R.P.No.279 of 2010 : 7 : the decree for possesssion and that remedy of the parties concerned is to have their grievance once and for all finally resolved in execution petition itself. This court considered a similar question where after the decree for mandatory injunction was executed and full satisfaction was recorded, judgment debtor interfered with possession of decree holder and destroyed boundary of the property. Question arose whether it was within the power of executing court to further execute the decree in spite of full satisfaction being recorded. In Dasan Nadar Surendran Vs. Parameswaran Pilla Thankappan Nair and Another (2007 (4) KHC 39) it has been held that Section 47 of the Code will come to the rescue of decree holder and notwithstanding the recording of full satisfaction in the early execution petition, if there is further obstruction at the instance of judgment debtor it is open to the decree holder to file application under Section 47 of the Code for successive execution of the decree he has obtained. It cannot be said that subsequent act of judgment debtor created a fresh cause of action in the decree holder and he is bound to file a separate suit. So far as recording of full satisfaction is concerned, it was held that since the principle of res judicata applied in execution petitions also, order recording full satisfaction had to be reviewed. In the circumstances executing court is not correct in holding that without an execution petition, E.A.No.74 of 2009 is not C.R.P.No.279 of 2010 : 8 : maintainable and that the said application is time barred. 6. It is contended by learned Senior Advocate that there is no proper identification of the property referred to in E.A.No.74 of 2009 to decide whether it is part of the decree schedule property. According to the learned Senior Advocate if the property referred to in E.A.No.74 of 2009 does not form part of the decree schedule then notwithstanding that property has been purchased by the respondents from the assignee of judgment debtor No.3 during the pendancy of suit it cannot be said that they are claiming under judgment debtor No.3 so far as this proceeding is concerned and hence are bound by the decree. I find merit in that contention. If it is found that property referred to in E.A.No.74 of 2009 is not part of the decree schedule necessarily remedy of petitioner lies elsewhere and not in execution of the decree on hand. But that decision depends on the question of identity of property. Learned counsel for petitioner tells me that petitioner had filed an application (E.A.No.190 of 2009) to appoint an Advocate Commissioner to identity the property but that application was dismissed on 07-04-2010. That being the position petitioner cannot be found fault with for not identifying the property. 7. Having regard to the facts and circumstances of the case I make it clear that petitioner can seek review of the order dated 11-08-2008 recording full satisfaction and closing the C.R.P.No.279 of 2010 : 9 : execution petition. Petitioner can also seek review of the order dismissing E.A.No.190 of 2009 and request the executing court to appoint an Advocate Commissioner to identity the property. 8. It is contended by learned Senior Advocate that it is not disputed that petitioner had assigned the decree schedule properties to 3rd parties as per Ext.B14 and hence petitioner cannot proceed with execution of the decree. That contention, I am afraid cannot be accepted. Though the Code provides that assignee from parties to the proceeding can continue the proceedings in his capacity as assignee that does not mean that the assignor shall not continue the proceedings. If the assignee is confident about the assignor, it is well within the power of the assignor to continue execution of the decree. That is a matter between the assignor and assignee. Moreover, I must bear in mind that this is not a case where assignee of the petitioner has come forward to execute the decree under Order 21 Rule 16 of the Code. Learned counsel for petitioner has placed reliance on a decision of the Calcutta High Court in Mstt. Sarwari Begum, Vs. Nazir Ahmed and Ors (AIR 2003 Calcutta 230) where it is stated that mere transfer of property is not transfer of decree. Executing court is bound to allow execution at instance of recorded decree holders unless transferees approached the executing court under Order 21 Rule 16 of the Code. That situation having not arisen in this proceeding, C.R.P.No.279 of 2010 : 10 : there is no bar in petitioner proceeding with execution of the decree. 9. It is pointed out by learned counsel for petitioner that as a matter of abundant caution petitioner has filed E.P.No.257 of 2009 seeking delivery of property under Order 21 Rule 35 of the Code and that the said execution petition is pending. I do not find any bar in E.P.No.359 of 2005 being revived and being enquired along with E.P.No.257 of 2009. 10. Having regard to the facts and circumstances of the case, I am not persuaded to accept the view expressed by executing court in dismissing E.A.No.74 of 2009. Dismissal of that application has to be set aside and I do so. Resultantly the revision petition is allowed in the following lines: (i) Dismissal of E.A.No.74 of 2009 is set aside. That application is remitted to the executing court for fresh consideration. It will be open to the petitioner to seek review of the order dated 11-08-2008 recording full satisfaction in E.P.No.359 of 2005 and closing the said E.P. (ii) In the light of the order I have passed in this revision petition it will be open to the petitioner to seek review of the order on E.A.No.190 of 2009 and request executing court C.R.P.No.279 of 2010 : 11 : to depute an Advocate Commissioner if necessary with the assistance of Surveyor to identity the property in dispute and referred to in E.A.No.74 of 2009 and decide whether it formed part of decree schedule property. (iii) Needless to say that respondents will get opportunity to raise their objection to E.A.No.74 of 2009 notwithstanding dismissal of E.A.No.359 of 2007. (iv) Executing court shall conduct enquiry on E.A.No.74 of 2009 along with E.P.No.257 of 2009 and pass appropriate orders as circumstances warranted. (THOMAS P JOSEPH, JUDGE) Sbna/-