IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 RSA.No. 533 of 2011() --------------------- AS.21/2003 of SUB COURT, CHERTHALA OS.487/1982 of PRL.MUNSIFF COURT, CHERTHALA (EA 165/01) .................... (S): APPELLANT ----------------------------- ALPHONSA,W/O.WILLIAM,KOYIPARAMBIL HOUSE, CHERTHALA SOUTH MURI,CHERTHALA SOUTH VILLAGE. BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) RESPONDENT(S): --------------- 1. MADHAVAN DAMODARAN,VALASSERIL, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE, CHERTHALA SOUTH PO, 688 552. 2. JOHN WILLIAM,S/O.JOHN,KOYILPARAMBIL HOUSE, CHERTHALA SOUTH MURI,CHERTHALA SOUTH VILLAGE, CHERTHALA SOUTH PO, 688 552. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.533 OF 2011 ............................................ DATED THIS THE 8th DAY OF JUNE, 2011 JUDGMENT First respondent is the decree holder and second respondent, judgment debtor. Appellant, the wife of second respondent judgment debtor filed E.A.165 of 2001 in the execution petition in O.S.487 of 1982. A mortgage decree was obtained by first respondent against second respondent. When the mortgage property was sought to be taken delivery, E.A.165 of 2001 was filed by the wife of the judgment debtor under Rule 97 of Order XXI of Code of Civil Procedure, without disclosing that second respondent judgment debtor is her husband, contending that the property originally belonged to Charankattu Velu and Velu transferred that property in favour of his daughter Vasanthi and Vasanthi granted a lease in favour of Anjalose and Anjalose obtained a purchase certificate in respect of the property and subsequently he executed Ext.A2 settlement deed wherein the property was settled in favour of appellant and hence appellant is in possession of the property and her possession RSA 533/2011 2 cannot be disturbed in execution of the decree. The decree holder opposed the application contending that there was no lease as alleged and the decree schedule property was mortgaged as per registered document No.6624 of 1970 in favour of Basaleena and the suit was instituted for redemption of the mortgage and it was decreed and it is being executed and appellant is not entitled to any right. 2. Learned Munsiff, on the evidence of Pws 1 and 2, Exts.A1 to A5 and X1 dismissed the application. Appellant challenged the judgment before Sub Court, Cherthala in A.S.21 of 2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of the executing court and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of learned counsel is that the property in the possession of appellant is in survey No.103/4 and it is not the mortgaged property and the second respondent has no right over the said property and it was not mortgaged to the first respondent and therefore in execution of the mortgaged decree that property cannot be taken delivery of. RSA 533/2011 3 4. The fact that appellant is the wife of second respondent judgment debtor is not disputed. Appellant was examined as PW1. The case in the claim petition is that the property originally belonged to Charankattu Velu and he transferred the property in favour of his daughter Vasanthi and Vasanthi granted a lease in favour of Anjalose. Evidence of PW1 shows that the said Anjalose is none other than the brother of second respondent, husband of appellant. Though it was contended that the property belonged to Velu and there was an assignment in favour of Vasanthi, no document was produced to establish either the title of Velu or a transfer in favour of Vasanthi. What is contended by appellant is that Anjalose settled the property obtained from Vasanthi on lease in her favour under Ext.A2 settlement deed executed on 11.11.1991 almost 20 years after the institution of the suit for redemption against her husband. The evidence of PW1 establishes that she is not aware of the lease at all. The evidence would also establish that she is not in possession of the decree schedule property, as it is admitted that she is not in possession of the property in Survey No.103/4A. Even according to the counsel, the property claimed by appellant is Survey RSA 533/2011 4 No.103/4. 5. As appellant is setting up right under Ext.A1 purchase certificate, learned Munsiff has called for the file relating to the certificate from the Land Tribunal and it is found that there was correction in Ext.X1. Courts below found that based on the purchase certificate also, appellant cannot cause any obstruction to the delivery of the decree schedule property. When the evidence of appellant conclusively establishes that it was her husband the judgment debtor, on her behalf filed the claim petition and had given instruction and she is unaware of the details of the property. It is absolutely clear that she has no right over the decree schedule property. In such circumstances, courts below rightly dismissed the application. No substantial question of law is involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk