IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Ex.FA.No. 3 OF 2008() --------------------- AGAINST THE ORDER DATED 03/11/2007 IN EA.671/2007 IN EP.272/1998 IN OS.48/1998 OF PRINCIPAL SUB COURT, PALAKKAD APPELLANTS/CLAIM PETITIONERS/3RD PARTY 1. USHA, AGED 50 YEARS, D/O. RAJASUBRAMANYA IYER, VADAKKANCHERRY GRAMAM, VADAKKANCHERRY AMSOM, DESOM, ALATHUR TALUK. 2. SIVAKUMAR, AGED 36 YEARS, S/O. RAJASUBRAMANYA IYER, VADAKKANCHERRY GRAMAM, VADAKKANCHERRY AMSOM, DESOM, ALATHUR TALUK. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR 1. K.K.VIJAYAN, S/O. KUNJUNNY, KURIYAKODU VEEDU, PUZHAKKAL VILLAGE, DESOM, THRISSUR TALUK. 2. P.L.S.KANNAN, AGED 55 YEARS, S/O. RAJASUBRAMANIYA IYER, VADAKKANCHERRY GRAMAM, VADAKKANCHERRY, ALATHUR TALUK. BY ADV. SRI.JACOB SEBASTIAN FOR R1 SRI.ANJALI VISWANATH FOR R2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: EX.F.A. 3/2008 ORDER ON I.A. NO. 37/2008 & I.A. 1863/2008 // DISMISSED // 5TH AUGUST, 2008. SD/-, P.R. RAMAN, (JUDGE). SD/-, T.R. RAMACHANDRAN NAIR, (JUDGE) // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = EX.F.A. NO. 3 OF 2008 = = = = = = = = = = = = = = = DATED THIS, THE 5TH DAY OF AUGUST, 2008. J U D G M E N T Raman, J. This appeal is against the order passed by the Principal Sub Court, Palakkad, dismissing E.A. 671/2007 in E.P. 272/1998 in O.S. 48/1998, which was filed by the appellants as claimants. Half right of the property in question was about to be sold when the appellants preferred the claim petition before the court below contending that they have got right over the property. The appellants are admittedly, the children of one Rajasubramanya Iyer and the second respondent in the claim petition who is also the judgment debtor is another son of Rajasubramanya Iyer. It is contended by the learned counsel for the respondent that several attempts on the part of the judgment debtor by filing one petition or the other against the sale were all found to be without any basis or merit and this is only yet another attempt made through the appellants to deny the fruits of the decree obtained by the respondents. 2. Heard both sides. The appellants have, along with the claim petition, produced six documents. The court below dismissed the case EX.F.A. 3 OF 2008 :2: without entering a finding on the merits, on the ground that the application was a belated one. 3. Under Order 21 Rule 58 of the Code of Civil Procedure, a claim petition can be filed at any time and if so, dismissal of the application as belated is not proper. Ultimately, the petitioners may or may not have any right; but that has to be found after adjudication. Once a claim is rejected a fresh suit is barred. In such circumstances, we think the court ought to have given an opportunity to adduce evidence and then decide the case on merits. Admittedly, only half right possessed by the judgment debtor is proposed to be sold at that time and by now, according to the respondent, the same has been sold. If so, he can only take symbolic delivery since it is an undivided right. Therefore, by giving an opportunity as directed will not prejudice the right of the first respondent herein. This will not stand in the way of taking symbolic delivery by the purchaser herein subject, of course to the ultimate result of the claim petition now filed by the appellants herein. In the result, we set aside the order under challenge and remit the case to the court below for fresh consideration in accordance with law. The parties shall appear before the court below on 2.9.2008, on which day, they EX.F.A. 3 OF 2008 :3: shall be ready with the evidence. The court below shall dispose of the matter as expeditiously as possible, at any rate, within a period of three months from today. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-