IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 OP(C).No. 3930 of 2011(O) ------------------------- IN EA 274/2001 IN EP.57/1999 IN OS 253/1984 OF I ADDL.SUB COURT, KOZHIKODE .................... PETITIONERS ---------------- 1. P.P.IMBICHIPATHUMBI,W/O.P.I.ALIKOYA RESIDING IN KACHERI AMSOM DESOM, KOZHIKODE TALUK 2. P.P.AMINABI,D/O. P.I.ALIKOYA KACHERI AMSOM DESOM, KOZHIKODE TALUK 3. P.P.ABDUL RAZAK,S/O. P.I ALIKOYA, KACHERI AMSOM DESOM, KOZHIKODE TALUK 4. P.P.ABDUL GAFOOR, S/O. P.I ALIKOYA, KACHERI AMSOM DESOM, KOZHIKODE TALUK 5. P.P.AFROSE, S/O. P.I.ALIKOYA KACHERI AMSOM DESOM, KOZHIKODE TALUK 6. P.P.NOUFAL, S/O.P.I.ALIKOYA KACHERI AMSOM DESOM, KOZHIKODE TALUK 7. P.P.BRAZEELIA SAINABA, D/O.P.I.ALIKOYA, KACHERI AMSOM DESOM, KOZHIKODE TALUK BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT(S): ---------------------- 1. M.V.ZEENATH,AGED 34 YEARS, D/O.P.P.MAMU KOYA, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK,KOZHIKODE 673 001 2. M.V.FAIZAL, S/O..P.P.MAMU KOYA, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK,KOZHIKODE 673 001 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3930 of 2011(O) --------------------------------- APPENDIX ------------- PETITIONER'S EXHIBITS ----------------------------- EXT.P1. COPY OF DECREE DATED 5.1.1989 IN O.S. 253/1984 OF THE SUB COURT, KOZHIKODE. EXT.P2. COPY OF E.P. 57/1999 IN OS 253/1984 OF SUB COURT, KOZHIKODE. EXT.P3. COPY OF THE PETITION E.A. 1712/2000 IN E.P. 57/1999 IN O.S NO.253/1984 OF SUB COURT, KOZHIKODE. EXT.P4. COPY OF ORDER DATED 17.2001 E.A. 1712/2000 IN EP 57/1999 IN O.S. 253/1984 OF SUB COURT, KOZHIKODE. EXT.P5. COPY OF THE ORDER DATED EA 692/1999 IN EP 57/1999 IN O.S. 253/1984 OF SUB COURT, KOZHIKODE. EXT.P6. COPY OF PETITION EA 274/2001 IN EP 57/1999 IN O.S. 253/1984 OF SUB COUT, KOZHIKODE. EXT.P7. COPY OF COUNTER IN EA 274/2001 IN E.P. 57/1999 IN O.S. 253/1984 OF SUB COURT, KOZHIKODE. EXT.P8. COPY OF THE ORDER DATED 5.11.2011 IN EA 274/2001 IN EP 57/1999 IN O.S. 253/1984 OF SUB COURT, KOZHIKODE. RESPONDENT'S EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3930 of 2011 -------------------------------------- Dated this the 2nd day of December, 2011. JUDGMENT Petitioners challenge Ext.P8, order dated 05.11.2011 on E.A.No.274 of 2001 in E.P.No.57 of 1999 in O.S.No.253 of 1984 of the court of learned Additional Sub Judge-I, Kozhikode. Learned Sub Judge refused to allow the request for redelivery of property under Order XXI, Rule 99 of the Code of Civil Procedure (for short, “the Code”). 2. Respondents obtained a decree against the 1st defendant, predecessor-in-interest of petitioners for recovery of possession of property and for mesne profits. After Ext.P1, decree was passed, 1st defendant expired. Respondents filed E.P.No.57 of 1999 for recovery of possession impleading petitioners 1 and 2 alone (among the legal representatives of deceased 1st defendant) as judgment debtors and obtained delivery of possession. Respondents also filed E.P.No.491 of 1999 against petitioners for recovery of mesne profits. While so, petitioners filed Ext.P6, application – E.A.No.274 of 2001 for re-delivery of property contending that in E.P.No.57 of 1999 all the legal representatives of deceased 1st defendant were not made parties. That application was dismissed by Ext.P8, order. 3. Learned counsel contends that on the death of 1st defendant, his estate devolved on all his legal representatives and hence, without impleading OP(C)No.3930/2011 2 all the legal representatives respondents could not get delivery of possession of property in E.P.No.57 of 1999. Reliance is placed on the decisions in Kanchamalai Pathar v. Shahaji Rajah Sahib ((1936) 70 MLJ 162) and Kolappa Pillai v. Krishna Pillai (AIR 1962 Kerala 144). According to the learned counsel, legal representatives who were not impleaded in E.P.No.57 of 1999 could have raised valid contentions to resist delivery of property. 4. Executing court took the view that so far as delivery of property with petitioners 1 and 2 alone on record in E.P.No.57 of 1999 is concerned, presence of all the legal representatives was not necessary since the court found that deceased 1st defendant had no right or interest over the property and hence question of any right or interest being inherited by the legal representatives over the suit property consequent to the death of 1st defendant did not arise. 5. It is not disputed that it was pursuant to a finding that the 1st defendant has no right over the property that a decree was granted in favour of respondents for recovery of possession of property from the 1st defendant. If that be so, there was no right or interest vested with the 1st defendant to be passed on to the legal representatives consequent to the death of 1st defendant. The decision in Kanchamalai Pathar v. Shahaji Rajah Sahib (supra) relied on by learned counsel was not in respect of a similar situation. That concerned execution of a money decree against legal representatives of judgment debtors where the question of liability of legal representatives directly came into the picture, for, under Sec.50 of the Code there could be no execution against the OP(C)No.3930/2011 3 person or property of the legal representatives and their liability was only to the extent of property of the deceased judgment debtor inherited by them. In Kolappa Pillai v. Krishna Pillai (supra) also the question considered was liability of legal representatives consequent to the death of the judgment debtors. 6. In the present case as the executing court found and which I find no reason to disagree, no right or title passed on to the legal representatives consequent to the death of 1st defendant, since the trial court found that he has no right so far as the suit property is concerned. I must bear in mind that if at all deceased 1st defendant had any right over the property, it is inherited by all his legal representatives as joint tenants with unity of right, title and interest and even possession. In such a situation even one of the legal representatives could represent the entire estate of the deceased on the principle of substantial representation. May be, it is open to the non-party legal representatives to challenge the order on fraud and collusion between the party – legal representatives and the respondent. In the present case there is no such plea and on the other hand, all the legal representatives have joined together to claim re-delivery of property. On that principle, claim of petitioners for re- delivery of property cannot be accepted. 7. So far as impleadment of legal representatives in E.P.No. 491 of 1999 for recovery of mesne profits is concerned, that is a different matter since liability of the legal representatives to pay mesne profits is in question. It is open to the legal representatives who are impleaded in E.P.No.491 of 1999 to resist OP(C)No.3930/2011 4 that execution petition on appropriate grounds as are available to them under law. With the above observation this petition is dismissed. THOMAS P.JOSEPH, Judge. cks