IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Ex.FA.No. 100 of 2009() ----------------------- AGAINST THE ORDER DATED 18/06/2009 IN EA148/2009 IN EP 655/97 IN OS.118/1975 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER:- THANKAM @ LEELA BEN, D/O.LATE RAMANATHA IYER, MADATHIL HOUSE, P.O. MARUTHAYOOR, THRISSUR DISTRICT, REP. BY POWER OF ATTORNEY HOLDER K.MURALEEDHARAN, KANDAMKUMARATH HOUSE, P.O.PATHIYARKULANGARA, THRISSUR DISTRICT. BY ADV. MR. K.M.KURIAN RESPONDENTS/ RESPONDENTS:- 1. P.V.SIVASANKARAN, 400/9TH H MAIN ROAD, RAJAJI NAGAR, BANGALORE-560 010. 2. THANKAMANIYAMMA, W/O.NARENDRAN, PERUMBAYIL VEEDU, MARUTHAYOOR P.O., THRISSUR. 3. PADMAVATHY AMMA, W/O.GOPALAN, KRISHNA VIHAR, KANATTUKARA, PANTHALAM LANE, THRISSUR. 4. BALACHANDRAN, (MENTALLY UNSOUND PERSON), S/O.LATE P.V.RAMANATHA IYER, MADATHIL VEEDU, MARUTHAYOOR P.O., THRISSUR. 5. MRS.DEVAKI GOPINATH, 225, C 8TH STREET, K K NAGAR, MADRAS-83. 6. VIJAYAN M.IYER, UNNI NIVAS, PAVARATTY P.O., THRISSUR DISTRICT. ADV. MR. DINESH MATHEW J.MURICKAN THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- Ex.F.A. No. 100 of 2009 ------------------------------------------------------------ Dated this the 29th day of July, 2009. JUDGMENT The claimant in E.A. No. 148 of 2005 in E.P. No. 655 of 1997 in O.S. No. 118 of 1975 on the file of the Sub Court, Thrissur is the appellant in this Execution First Appeal filed under Order 41 Rule 1 r/w Order 21 Rule 58(4) and 103 C.P.C. 2. I heard the learned counsel for the appellant as well as the learned counsel for the 1st respondent decree holder. The said suit was filed by one Viswanatha Sharma, the predecessor of the 1st respondent herein seeking recovery of possession of the plaint schedule property on the strength of title. The suit property is having an extent of approximately three acres. The suit was decreed on 04.08.1980. The decree was confirmed by this Court and by the Supreme Court. The decision of this Court is reported in 1986 KLT 905. It was long thereafter that E.A. No. 148 of 2005 was filed by the appellant who claims to be the 2nd Ex. F.A. No. 100 of 2009 : 2 : daughter of one Ramanatha Iyyer who is alleged to have died in the year 1997. Ramanatha Iyyer was the husband of the original defendant. Respondents 4 and 6 herein are the children of the said Ramanatha Iyyer and the 1st defendant Ammukutty Amma and respondents 4 and 6 are also the judgment debtors. 3. The appellant contended that she was not made a party in the suit and therefore she did not receive notice in the suit and therefore, the proceedings are not binding on her. According to her, a partition had taken place on 26.12.1932 and the 8th party was her father Ramanatha Iyyer who had married thrice. The appellant was the 15th defendant in O.S No. 346 of 1998 on the file of the Sub Court, Thrissur which was a suit filed by one Padmini Amma who is a daughter of Ramanatha Iyyer's brother seeking a declaration that the partition deed dated 26.12.1932 was null and void. That suit was dismissed for default and has not been restored to file so far. Even though the status of Ex. F.A. No. 100 of 2009 : 3 : the appellant as the legal representative of Ramanatha Iyyer was vehemently disputed, she did not produce any convincing evidence to show that she was the daughter of Ramanatha Iyyer. The case was posted for her evidence thrice. She did not appear before the court below or adduce evidence. She remained content by continuing her stay in Gujarath and by filing a petition through a power of attorney holder and leaving the matter there. It is pertinent to note that the very same application filed by the applicant was once dismissed for default and she filed W.P.(C) No. 15466 of 2005 seeking restoration and disposal of the petition on merits. As per judgment dated 20.06.2005, this Court directed restoration of the E.P and disposal of the same within one month. She was able to protract the matter for nearly four years without making any earnest endeavour to adduce oral or documentary evidence or make her appearance before the court. The 1st respondent had even a contention before the court below that the appellant Ex. F.A. No. 100 of 2009 : 4 : never came to Kerala and that the petition was actually not filed by her but by somebody without her authority or knowledge. Moreover, Ramanatha Iyyer under whom she claimed had only a life interest over the property and the same would not survive after his death. All the contentions raised by the appellant were raised by Ammukutty Amma, the 1st defendant in the suit and were rejected. 4. This is a suit which was filed in the year 1975 and even after three decades the decree holder has not been able to enjoy the fruits of the decree. The Execution Court was, therefore, justified in dismissing the petition with exemplary costs for Rs.10,000/- to the decree holder. 5. The facts of the case as narrated above, reminds us of the classic observation made by the Privy Council more than a century ago that the trouble of an Indian litigant only starts when he gets a decree in his hands. I see absolutely no reason to interfere with the well considered order dated 18.06.2009 passed by the learned Sub Judge. This appeal is Ex. F.A. No. 100 of 2009 : 5 : accordingly dismissed in limine. The appellant is given one month's time to deposit the cost ordered by the court below. Dated this the 29th day of July, 2009. V. RAMKUMAR, JUDGE. rv