IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 28323 of 2008(V) -------------------------- AGAINST THE ORDER IN EP.191/06,EA.26/07 IN OS.455/2004 of PRL.MUNSIFF'S COURT,KOLLAM .................... PETITIONER(S): -------------------------- SUJITHA KUMARI, D/O.MEENAKSHI AMMA, MANESH NIVAS, ULIYARAZHETHU VILLAGE, PACHIKKONAM, THIRUVANANTHAPURAM. BY ADVS. MR.MATHEW JOHN (K) MR.AJEESH K.SASI. RESPONDENT(S): --------------------------- 1. SANTHAMMA, W/O.KARUNAKARAN NAIR, NOW RESIDING AT.S.8, KARUNALAYAM, SANKAR NAGAR, CHINNAKKADA, KOLLAM. 2. THULASEEDHARAN, VADHYAR VEEDU, ASRAMOM CHERRY, KOLLAM EAST VILLAGE. 3. JAYA, W/O.THULASEEDHARAN , DO.DO. R1 BY ADVS. MR.VAKKOM N.VIJAYAN, SMT.V.RENJU, SMT.M.A.RAMITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28323/2008 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AFFIDAVIT AND PETITION FOR IMPLEADING THE 1ST RESPONDENT DTD. 5/01/2007. P2: COPY OF THE WILL DTD. 8/01/2004. P3: COPY OF THE OBJECTION BY THE PETITIONER. P4: COPY OF THE ORDER DTD. 10/04/2008 IN E.A.NO.26/2007 IN E.P.NO.191 OF 2006 IN O.S.NO.455 OF 2004, MUNSIFF'S COURT, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28323 of 2008 - V --------------------------------- Dated this the 29th day of June, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To call for the records leading up to Ext.P4 and set aside the same. ii) To direct the court below to consider the application seeking to implead the legal heirs of late Meenakshi Amma afresh without reference to Ext.P2 will”. 2. Petitioner is the first judgment debtor in E.P.No.191/2006 in O.S.No.455/2004 on the file of the Principal Munsiff Court, Kollam. Suit was one for recovery of money alleged to have been collected by the petitioner who was the first defendant in the suit from the tenant of a building, the second defendant. Plaintiff in the suit was none other than the mother of the first defendant. Suit was decreed. After passing of the decree, plaintiff/decree holder passed away. Another daughter of the decree holder got herself substituted in the petition as the additional second decree holder basing her right to recover the decree claim on the basis of a will purported to have been executed by the late decree holder. In the execution W.P.(C).No.28323 of 2008 - V 2 proceedings, genuineness of the will was challenged by the petitioner/first judgment debtor and the learned Munsiff, after conducting an enquiry in the matter concluded that the will was genuine and the second additional decree holder is competent to execute the decree as a party substituted as additional decree holder. Legality, propriety and correctness of that order is impeached in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. At the time of hearing, learned counsel for the petitioner/judgment debtor submitted that the decree had been passed ex-parte, against which the petitioner had moved an application under Order IX Rule 13 CPC, but, that application was dismissed by the trial court. An appeal was preferred before the District Court and that appeal has been disposed allowing the application by setting aside the ex-parte decree. That being so, it is submitted that the decree no longer survives and the relief claimed in the petition has become infructuous. Petitioner wanted this Court to make an observation that the finding of the W.P.(C).No.28323 of 2008 - V 3 execution court on the genuineness of the will is not final, leaving the question open for adjudication if it arose for consideration at a later stage. First respondent was substituted as additional second decree holder in execution accepting her right to execute the decree on the basis of a will, I find that the entire proceedings taken by the execution court to determine the genuineness of the will was improper and not sanctioned by law since what was sought to be executed was a decree for money after the death of the decree holder. When that be so, without satisfying the mandate covered under Section 214 of the Indian Succession Act, demanding production of a succession certificate, a representative is not competent to seek for execution of the decree. The question is settled by a decision of our High Court in a Bench in Elsy v. State of Kerala (2008 (1) KLT 904). That being so, the finding made on the genuineness of the will by the execution court has no legal sanctity at all. Subject to the above observation, this writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-