IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No.29973 of 2008 (R) ---------------------------------- EP.340/2006 IN OS.85/1997 of M.C., WADAKANCHERRY .................... PETITIONER: --------------- K.J.PRASANNA, W/O.ADV.DEVDAS, CHERTHALA. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS: ------------------ 1. SIDHARTHAN, S/O.KARANATH LATE KRISHNANKUTTY, CHEMBUKKAVU VILLAGE DESOM, THRISSUR TALUK. 2. MOHANKUMAR, S/O.LATE JAGADEESHAN, THEKKUM KARA VILLAGE DESOM, TALAPPILLY. 3. SURESHKUMAR, S/O.LATE JAGADEESHAN, THEKKUM KARA VILLAGE DESOM, TALAPPILLY. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.M.GEORGE THOMAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.29973 of 2008 (R) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF JUDGMENT IN O.S.85/97 OF THE MUNSIFF'S COURT, WADAKKANCHERY. EXT.P2:- TRUE COPY OF JUDGMENT DT.13/07/04 IN A.S.374/2000 OF THE DISTRICT COURT, THRISSUR. EXT.P3:- TRUE COPY OF EXECUTION PETITION IN E.P.340/06 IN O.S.85/97. EXT.P4:- TRUE COPY OF COUNTER FILED BY RESPONDENTS 5, 6 AND 8 IN E.P.340/06. EXT.P5:- TRUE COPY OF ORDER DT.13/08/08 IN E.P.340/06 IN O.S.85/97 OF MUNSIFF'S COURT, WADAKKANCHERY. ........................ K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.29973 of 2008 ------------------------------------------------ Dated this the 10th day of December, 2008 JUDGMENT Counsel for the first respondent/first defendant submits that a decree that is obtained by him in his favour cannot be executed on account of the stay granted from this Court; that the petitioner is not taking necessary steps to complete service of notice to respondents 2 and 3 who are plaintiffs in the suit who suffered a decree the counter claim advanced by the first respondent having been decreed and that in the circumstances, respondents 2 and 3 are not necessary parties for the purpose of adjudicating the claim that was advanced by the petitioner and rejected by the court below. In the circumstances, notice to respondents 2 and 3 is dispensed with. 2. Heard counsel on both sides. The first respondent was the first defendant in W. P. C. No.29973 of 2008 -2- O.S.85/97 on the file of the Munsiff's Court, Wadakanchery, a suit instituted by respondents 2 and 3 and their mother for a decree of permanent prohibitory injunction restraining him from trespassing into the said property having an extent of 19 acres claiming title over the said property. The first respondent/ first defendant advanced counter claim for an extent of 3.93 acres of land from out of the said 19 acres of scheduled property. After trial the trial court found that the counter claim advanced by the first respondent/first defendant stands established in relation to 3.65 acres and not in relation to 3.93 acres claimed by him and granted a decree allowing the counter claim in relation to the said 3.65 acres and allowed first respondent/first defendant to have boundaries thereof fixed as shown by Advocate Commissioner in Ext.C2 report and as illustrated in Ext.C4 plan. The W. P. C. No.29973 of 2008 -3- decree prayed for by the plaintiffs in the suit was negative. 3. The first respondent/decree holder filed execution petition in the court below to have the decree executed fixing boundaries and putting up boundary walls for the said 3.65 acres. It was then that the petitioner who is the sister of respondents 2 and 3 along with her other sisters advanced claim to the effect that they are also sharers to the scheduled property of 19 acres in relation to which suit was instituted by respondents 2 and 3 and their mother; that therefore, they were also necessary parties to the suit and that a decree passed in the suit in the counter claim advanced by the first respondent without them also on the party array is not binding on them. The said claim was being advanced on the execution side when they were impleaded consequent on death of first plaintiff/Suseela W. P. C. No.29973 of 2008 -4- who is their mother and also the mother of respondents 2 and 3 and other additional judgment debtors. The execution court repelled their contentions and allowed boundary being fixed and put up deputing Advocate Commissioner vide Ext.P5 order. Ext.P5 is being challenged filing this Writ Petition only by the petitioner who is the additional fifth judgment debtor in the execution petition and not by the others. 4. It is worthy to note that the suit was being instituted by respondents 2 and 3 and their mother against the first respondent and the first respondent was advancing only a counter claim therein. Though the additional judgment debtors 4 to 9 including the present petitioner were impleaded on the execution side as the LRs of the deceased first judgment debtor who was their mother it is the case of the petitioner and the other additional W. P. C. No.29973 of 2008 -5- judgment debtors also that they are co-owners with respondents 2 and 3 who were plaintiffs 2 and 3 in the suit. That means there was substantial representation on behalf of the petitioner, and respondents 2 and 3 along with their mother filed the suit for and on behalf of the other co-owners as well and they resisted counter claim for and on behalf of also other co-owners. A decree obtained allowing the counter claim advanced by the first respondent is hence, binding on all the co-owners including the present petitioner and they have no right to resist execution of the decree when the other co-owners who resisted the counter claim was not successful in establishing the rights set up by them or to resist the claim advanced by the first respondent/first defendant in the counter claim. Thus, there is no merit in this Writ Petition filed by the petitioner. W. P. C. No.29973 of 2008 -6- 5. It is further contended by the counsel for the petitioner that though when impleaded as additional judgment debtors consequent on death of their mother the petitioner as also her sisters did step into the shoe of the judgment debtors, they have got a contention that the decree has been collusively obtained between the first defendant and respondents 2 and 3 and their mother. If at all they have got such a case of collusion and fraud which would vitiate the decree, they can seek appropriate relief elsewhere and they cannot resist execution of the decree in the present suit. 6. This Writ Petition in the circumstances, is dismissed. K.P.BALACHANDRAN, JUDGE kns/-