IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Ex.SA.No. 5 of 2006() --------------------- AS.17/2003 of D.C.& SESSIONS COURT,THODUPUZHA OS.27/1996 of MUNSIFF COURT, IDUKKI (EA 32/02 IN EP 11/02) .................... APPELLANT-RESPONDENT-DECREE HOLDER ------------------------------------------------------ SUMA RAJAN, NELLIKUNNEL HOUSE, MARIYAPURAM KARA & P.O, THANKAMANI VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): APPELLANT-PETITIONER ----------------------------------- SHEELA, W/O.SHAJI, PONNARATHANKUZHIYIL HOUSE, MARIYAPURAM KARA, THANKAMANI VILLAGE. ADV. SRI.S.M.PRASANTH FOR R DR.K.BALAKRISHNAN THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... EX.SA No. 5 OF 2006 ............................................ DATED THIS THE 21st DAY OF JUNE, 2011 JUDGMENT The decree holder in E.P.11 of 2002 on the file of Munsiff Court, Idukki, who is the respondent in E.A.32 of 2002 filed by the respondent claimant under Rule 58 of Order XXI of Code of Civil Procedure is the appellant. Appellant instituted O.S.27 of 1996 for realisation of Rs.4000/- with 18% interest and return of gold ornaments worth Rs.10,000/- from the first judgment debtor, her husband and second respondent, his mother. The suit was decreed on 17.10.1996. The judgment debtors were directed to pay Rs.4000/- with interest at the rate of 18% per annum and also 20 gms of gold or its value of Rs.10,000/-. E.P.11 of 2002 was filed for execution of the decree. In the execution petition, the movables from house No.248 of Mariyapuram panchayat were attached and brought before the court. Respondent, who is none other than the sister of first judgment debtor and the daughter of the second judgment debtor, filed E.P.32 of 2002 to release the articles by raising the EX.SA 5/2006 2 attachment contending that those movables were attached from her residential house and the movables belong to her and the judgment debtors have no right over it and therefore appellant has no right to attach them or proceed against those movables. 2. Learned Munsiff on the evidence dismissed the application. Respondent challenged the order before District Court, Thodupuzha in A.S.17 of 2003. Learned District Judge, on reappreciation of evidence, finding that respondent has only a prima facie burden to prove the ownership and that burden has been discharged, held that movables belonged to the respondent and therefore they cannot be proceeded against for realisation of the amount due from the judgment debtors. The appeal and the claim petitions were allowed. Respondent challenged the judgment before this court in E.S.A.6 of 2005. This court set aside the judgment of the learned District Judge and remanded the appeal to dispose afresh on merits, holding that first appellate court erroneously cast the burden of proof on the appellant. Learned Additional District Judge thereafter on reappreciation of the evidence, once again confirmed the earlier findings and allowed the appeal. It is challenged in the second EX.SA 5/2006 3 appeal. 3. Second appeal was admitted formulating the following substantial questions of law. “1. Is not the lower appellate court in serious error in having found the title of the house in question with the respondent-claim petitioner on the basis of an alleged gift in the absence of any materials in substantiation of the gift. In this context it is to be pointed out that the parties being not muslims oral gift is legally impermissible. 2. Is not the lower appellate court in serious error in having misunderstood the nature of the burden of proof on a claim petitioner. When a claim petitioner in law is in the position of a plaintiff in a suit for declaration of title, is not the lower appellate court in serious error in taking the view that the claim petitioner has only initial burden to establish her right. 3. Is not the finding of the lower appellate court perverse as having been rendered contrary to the materials on record. 4. Is not the lower appellate court in error in venturing to enter a finding regarding the ownership of the building and the question of burden of proof regarding the proof of title of the movable properties in the light of categoric declaration of law and finding EX.SA 5/2006 4 of fact by this Honourable Court in Ex.S.A.No.6 of 2005.” 4. Learned counsel appearing for appellant and respondent were heard. 5. Learned counsel appearing for appellant pointed out that when a claim petition is to be treated as a plaint and is to be tried as a suit, the burden is on the respondent to establish her right over the attached movable properties and first appellate court wrongly cast the burden on the appellant and on the evidence, it should have been found that all the movables belong to the judgment debtors and therefore the attached movables should not have been released. Learned counsel further pointed out that though learned Additional District Judge found that movables were attached from the residential house of the respondent and so it is for the appellant to establish that those movables belong to the judgment debtor, entire evidence was appreciated elaborately and found that the movables did not belong to the judgment debtors but to the respondent and therefore there is no reason to interfere with the findings of the first appellate court. 6. As held by this court in George Antony V. Kerala EX.SA 5/2006 5 State Financial Corporation (1989(1) KLT 486), when the claim petition is to be tried as a suit and the order is to be treated as a decree and the claim petition is to be considered as a plaint, the burden is definitely on the claim petitioner to establish the title over the attached movables. Learned Additional District Judge relied on the decision of the Delhi High Court in Vali Ram V.Smt.Satwanti Kaur and others (AIR 1984 Delhi 90) and found that the burden is on the appellant to prove that movables attached from the house of the respondent belonged to the judgment debtor. The burden to prove the right claimed on the attached movable items cannot be shifted to the decree holder and the burden is definitely on the claim petitioner. But the degree of the burden to be discharged varies from case to case. If the movables are attached not from the house of the judgment debtor or the shop of the judgment debtor or from a place where judgment debtor has no control, and the owner of the building from where the movables were attached files a claim petition, the degree of proof required is not as severe as in the case of a claim petition filed in respect of a movable attached from the custody of the judgment debtor. That exactly is the case herein. EX.SA 5/2006 6 7. Though the respondent did not specifically plead that the property where the house from which the movables were attached were gifted to her by the father and it is admitted that the father, mother, brother and the respondent were together residing there previously, and it is not the case of appellant that the movables attached in execution of the decree were available at the house when they were residing together. On the other hand, it is her case that she was residing in that house along with the first judgment debtor as his wife and while so, first judgment debtor along with the elder sister of the appellant went away from there and they started to reside at Kumali as husband and wife and he had begotten children in that relationship. It is the case of appellant that while so, earlier to the order of attachment passed by the executing court, first judgment debtor brought the movables attached in this case from Kumali to the house from where movables were attached. Though DW2 was examined to prove that he had witnessed the transfer of the article from Kumali to the house of the appellant, learned Additional District Judge on appreciation of evidence of DW2 found that his evidence is not reliable. On going through the evidence of DW2, it cannot EX.SA 5/2006 7 be said that the view taken by the Additional District Judge is not a possible or reasonable view which could be taken on appreciation of the evidence. Though as RW1, appellant had claimed that she had seen the articles at the house of the first judgment debtor at Kumali, on her evidence it is impossible to believe that version. Therefore, there is no evidence to prove that the movables attached were transported from Kumali to the house from where they were attached, as claimed by respondent. 8. As against this, it is not disputed that respondent was residing in the house from where the movables were attached. Though it can be said, much reliance cannot be placed on the evidence of Pws 2 and 3, when the movables are attached from the house where the respondent was admittedly residing at that time and there is no case for the appellant that those articles were there previously, when judgment debtors along with the appellant were residing there and even as per the evidence of RW1, the respondent, these articles were brought to the house only later allegedly from Kumali, the view taken by first appellate court on appreciation of evidence cannot be said to be not a reasonable view. If that be so, I do not find any reason to EX.SA 5/2006 8 interfere with the finding of the first appellate court. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk