IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 OP(C).No. 1376 of 2011(O) ----------------------------------- E.A. NO. 197/2010 IN E.P. NO. 49/2009 IN OS.221/1996 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER: -------------------- FATHIMA BEEVI, PULIMMOOTTIL VEEDU, KOMALLOOR , CHUNAKKARA. BY ADV. SRI.R.KRISHNA RAJ RESPONDENTS --------------------- 1. J.K.CHITTY FUND NOORANADU, REPRESENTED BY MANAGING PARTNER JAYAKUMAR, SREENILAYAM, MUTHUKATTUKARA, PALAMEL VILLAGE.PIN 690 896 2. HABEEB, PULIMOOTTIL VEEDU, CHUNAKKARA MURI, CHUNAKKARA. PIN-690 896 3. SAHAJAHAN, SHAJAHAN SADANAM, CHUNAKKARA MURI, CHUNAKKARA.PIN-690 896 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SMT K.T.SANKARAN, J. ------------------------------ O.P(C).No.1376 OF 2011 ------------------------------ Dated this the 5th day of April, 2011 JUDGMENT In E.P.No.49 of 2009 in O.S.No.221 of 1996, Munsiff's Court, Mavelikkara, a portion of the property belonging to the first judgment debtor, Habeeb was sought to be sold at the instance of the decree holder, namely, J.K.Chitty Fund. The property belonged to the petitioner and her late husband. The petitioner is the mother of Habeeb, the first judgment debtor. It is stated that the husband of the petitioner passed away. The petitioner and her husband had executed a gift deed in favour of Habeeb reserving the life interest of the petitioner in the property. 2. The petitioner filed a claim petition in the Execution Proceedings stating that the property cannot be proceeded with for any liability of Habeeb. In the claim petition, mention was made about a decree in O.S.No.117 of 1993 which was a O.P(C).No.1376 OF 2011 2 suit filed by the petitioner against Habeeb in which a decree was passed restraining Habeeb from alienating the plaint schedule property in such a way as to interfere with the possession of the petitioner herein and her residence and from evicting the petitioner and her husband from the property. 3. The court below dismissed the claim petition filed by the petitioner. It was held that the fact that the petitioner is having life interest in the property will not entitle her to claim that the property or any portion thereof cannot be sold. 4. There appears to be no dispute that the petitioner is having a life interest in the property. The decree in O.S.No.117 of 1993 is against the first respondent restraining him from alienating the property. Court auction sale is an involuntary alienation and that would not be against the directions of the decree in O.S.No.117 O.P(C).No.1376 OF 2011 3 of 1993. As regards the right of the petitioner, even after sale in execution, the petitioner cannot be evicted from the property since she has life interest in the property. That does not mean that the property cannot be sold in court auction. The title to the property vests in Habeeb and that right can be proceeded against in execution of the decree against him. Even after execution of sale, the decree holder would be entitled to symbolic delivery and in such a case the interests of the petitioner would not be affected. Even after a portion of the property is sold, delivery of that portion also could be only symbolic delivery. The court below was right in dismissing the claim petition. There is no ground to interfere with the order passed by the court below. The Original Petition is accordingly dismissed. K.T.SANKARAN, JUDGE. cms