IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 Ex.SA.No.17 of 2005 ( ) ----------------------------- AS.301/2005 of DISTRICT COURT, TRIVANDRUM OS.150/1965 of I ADDL.M.C.,TRIVANDRUM (E.P. 472/2001) .................... APPELLANTS/JUDGMENT DEBTORS 16 & 17 IN THE EXECUTION COURT/APPELLANTS IN THE LOWER APPELLATE COURT) --------------------------------------------------------------------------- 1. J.KUMARADASAN NAIR, TC 30/1719, NEAR DPI JUNCTION, THIRUVANANTHAPURAM. 2. T.SARATHCHANDRAN NAIR, T.C. 24/1892, NEAR DPI JUNCTION, THIRUVANANTHAPURAM. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.K.B.PRADEEP RESPONDENTS/ADDL. DECREE HOLDERS 2 TO 6 IN THE EXECUTION COURT/ADDL. PLAINTIFFS (RESPONDENTS 1 TO 5 HEREIN) AND JUDGMENT DEBTORS 2 TO 4 AND 6 TO 17/RESPONDENTS IN THE LOWER APPELLATE COURT: -------------------------------------------------------------------------------- 1. IRIC SOHAN, SARETIL, NANTHANCODE, THIRUVANANTHAPURAM. 2. JANAKAN LAL, DO. DO. 3. KAMAL SEN, DO. DO. 4. VIMALA HUBERT, DO. DO. 5. CHITHRA SEN, DO. DO. Ex.SA.No.17 of 2005 -2- 6. GOVINDAN KOCHUKRISHNAN, VELANIVILAKATHU VEEDU, MANCHADIMOODU, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM. 7. NARAYANAN ASSARI, RAMAKRISHNAN ASSARI, POOMUTTATHU VEEDU, VALIYASALA, CHALAI MURI, CHENGAZHASSERI VILLAGE, THIRUVANANTHAPURAM. 8. NARAYANAN ASSARI KOLAPPAN ASSARI, DO. DO. 9. PACHAL ASSARI RAJAPPAN ASSARI, VILAYIL VEEDU, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM. 10. RAJAMMA, W/O.SHANMUGHAM ASSARI, POOMUTTATHU VEEDU, VALIYASALA, CHALAI MURI, CHENGAZHASSERI VILLAGE, THIRUVANANTHAPURAM. 11. RAJAMMA KAMALAM, DO. DO. 12. RAJAMMA SHAILAJA, DO. DO. 13. RAJAMMA KASTHURI, DO. DO. 14. SHANMUGHAM ASSARI VIJAYAKUMAR, DO. DO. 15. R.GOPAKUMAR, T.C.5/748, VILAYIL VEEDU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 16. SREENIVASAN, DO. DO. 17. R.SURESH KUMAR, DO. DO. 18. S.KUMARI LEKSHMI, DO. DO. BY ADV. SRI.M.N.MANMADAN FOR R1 SRI.BIJU HARIHARAN FOR R1 SRI.JAYAMOHAN.M FOR R1 THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Ex. S. A. No.17 of 2005 ------------------------------------------------ Dated this the 13th day of June, 2008 JUDGMENT The appellants are counter petitioners 16 and 17 in E.P.472/01 in O.S.150/65 on the file of the Munsiff's Court, Thiruvananthapuram. They were impleaded in the execution petition by the decree holder as they are the auction purchasers in O.S.274/82 of Sub Court, Thiruvananthapuram of the right which the obstructor Ramaswamy the predecessor in interest of counter petitioners 12 to 15 in the E.P. claimed when Ramaswamy set up resistance to delivery in execution of the decree in O.S.150/65. The resistance so offered by Ramaswamy was on the strength of purchase certificate obtained from Land Tribunal in O.A.231/75. At the time of raising of obstruction on the strength of the purchase certificate, A.A.467/79 was pending against the order in O.A.231/75 aforesaid and later, Ex. S. A. No.17 of 2005 -2- the said A.A was allowed and the order of the Land Tribunal directing issuance of purchase certificate was set aside. C.R.P.425/88 filed from the judgment of the Land Reforms Appellate Authority in A.A.467/79 was dismissed and a review petition filed therein as R.P.171/93 also was dismissed on 02/03/95. Thus, the right claimed by the obstructor Ramaswamy, the predecessor in interest of counter petitioners 12 to 15 in the E.P no more existed for them to resist delivery on the basis thereof. However, it was in the meanwhile that the said right so set up by Ramaswamy on the basis of the purchase certificate issued from the Land Tribunal in O.A.231/75 was brought to sale in execution of the money decree in O.S.274/82 of the Sub Court, Thiruvananthapuram and counter petitioners 16 and 17 in the E.P purchased the said right in court auction. Obviously, it is a case where the auction purchasers were stepping Ex. S. A. No.17 of 2005 -3- into the shoe of judgment debtors' in O.S.274/82 aforesaid who were Ramaswamy the predecessor in interest of counter petitioners 12 to 15 and his son Gopakumar who is the 12th counter petitioner in the E.P. When it so turned out that the purchase certificate was set aside no right was there for the obstructor Ramaswamy or his successors over the scheduled property and the appellants who were counter petitioners 16 and 17 obviously cannot set up any right in them as what they purchased in court auction was an assumed right which proved to be nonest by reason of cancellation of the purchase certificate by the appellate authority which was confirmed up to this Court. 2. Apart from the fact that counter petitioners 16 and 17 are impleaded in the E.P as purchasers of the right of the obstructor, counter petitioners 16 and 17 had not set up any obstruction on the strength of the Ex. S. A. No.17 of 2005 -4- purchase certificate by which they purchased the right of the obstructor which later turned out to be nonest. Hence, obviously, the appellants could not set up the purchase certificate to claim any independent right in them otherwise than under the obstructor Ramaswamy for whom there was absolutely no right over the decree schedule property as has been finally held by the verdict of this Court approving the order of the appellate authority setting aside the order of the Land Tribunal and canceling issuance of purchase certificate as aforesaid. 3. Counsel for the appellants submits that as they were impleaded in the E.P and an order was passed adjudicating their right it could not but be assumed that it is an order adjudicating the rights of an obstructor and that was why an appeal was preferred before the District Court. Obviously, the order passed by the execution court is not an Ex. S. A. No.17 of 2005 -5- adjudication under Rule 101 read with Rule 98 as adjudication with respect to right of Ramaswamy had already been made and it was found that he has no independent right as attempted to be set up on the strength of the purchase certificate issued in O.A.231/75. When such an adjudication was had the appellants who have stepped into the shoe of Ramaswamy the obstructor and his son Gopakumar the 12th counter petitioner cannot advance any independent claim and they have not advanced either, any independent claim except that in view of their impleadment in the E.P the court considered their objection and held that they are not having any independent right as nothing remained for adjudication other than the right found against the obstructor by the execution court already. Hence, as rightly found by the appellate court the appeal filed before the District Court was not maintainable. Ex. S. A. No.17 of 2005 -6- 4. As regards the question of limitation set up before the execution court, the execution court repelled the objection holding that the present E.P is only a continuation of the earlier E.P which was closed by that court. Even the said order is not an order that is appealable. The learned counsel for the appellants submitted that the first appellate court though observed that the appeal itself is not maintainable, has proceeded to consider the appeal further and hold that the appellants are persons claiming through the obstructor whose claim of right has been adjudicated and rejected by the court and the appellants are bound by the said order against their predecessor but without considering the other objections raised to the execution and it is therefore, that this Execution Second Appeal is necessitated. Counsel for the appellants requested that this Execution Second Appeal be disposed of without Ex. S. A. No.17 of 2005 -7- entering into merits, but setting aside the judgment however of the appellate court to the extent it has gone to the merits of the case and the appellants be permitted to agitate their objections to the E.P. overruled by the execution court in revision. 5. I am convinced that the request made by the learned counsel for the appellants is necessitated by reason of the first appellate court wrongly entering into merits of the case and considering the right of the appellants after holding that the appeal is not maintainable and that therefore, setting aside the judgment of the first appellate court, the Execution Second Appeal deserves to be disposed of without prejudice to the rights of the appellants to move for appropriate reliefs by way of revision or otherwise, if so advised. 6. In the result, I dispose of this appeal setting aside the judgment appealed Ex. S. A. No.17 of 2005 -8- against to the extent it has gone to the merits of the contentions of the appellants after holding that the appeal itself was not maintainable. With a view to enable the appellants to seek for appropriate relief, it is ordered that the decree holders shall not take delivery of the decree schedule property for a period of one month from today. Inasmuch as the appellants are being referred to seek for their reliefs in appropriate proceedings, substantial question of law formulated as Sl. No.4 in the appeal memorandum on which also the appeal was admitted is left open. Registry shall return the certified copies of documents produced by the appellants in this Execution Second Appeal to the counsel for the appellants. Parties to suffer their costs in this appeal. K.P.BALACHANDRAN, JUDGE kns/-