IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 CRP.No. 245 of 2006() --------------------- AGAINST THE ORDER DATED 07/03/2006 IN EP. 144 /2003 IN OS.1735/1996 of PRL.M.C.,ERNAKULAM .................... REVISION PETITIONER(S): DECREE HOLDER: -------------------------------------------------------------------- T.D.DIVAKARA PAI, AGED 39, S/O.T.G.DAYANANDA PAI, THERUVIPARAMBIL HOUSE, T.D.EAST SANNIDHI ROAD, KOCHI-35, BY ADV. MR.S.SREEKUMAR RESPONDENT(S): JUDGMENT DEBTORS: -------------------------------------------------------------- 1. S.BABU SHENOY, S/O.SARVOTHAMA SHENOY, AGED ABOUT 37, XL/5850, T.D.SANNIDHI ROAD, ERNAKULAM. 2. S.DILEEPKUMAR SHENOY, S/O.SARVOTHAMA SHENOY, XL/5850, T.D.SANNIDHI ROAD, ERNAKULAM. 3. S.SIVADAS SHENOY, S/O.SARVOTHAMA SHENOY, AGED ABOUT 30, XL/5850, T.D. SANNIDHI ROAD, ERNAKULAM. 4. PAWAN MANCHANDA, AGED 35, S/O.D.L. MANCHANDA, 5E, KATTIKKARAN TOWERS, PROVIDENCE ROAD, KOCHI-18. 5. RAJESH MANCHANDA, AGED 30, S/O.D.K.MANCHANDA, 6B, KATTAKKARAN TOWERS, PROVIDENCE ROAD, KOCHI-18. R1 TO R3 BY ADVS. MR. R.LAKSHMI NARAYAN, SMT.R.RANJINI. R4 & R5 BY ADV.MR.S.R.DAYANANDA PRABHU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ..2/- ..2.... CRP.NO.245/2006 O R D E R No representation. This revision is dismissed for default. 25/02/2010 Sd/- P.Bhavadasan, Judge /True Copy/ P.S.to Judge kss S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.245 OF 2006 -------------------------------- Dated this the 8th day of April 2010 ORDER The revision is directed against the order passed by the learned Principal Munsiff, Ernakulam dismissing an execution petition filed by the petitioner/decree holder in O.S No.1735 of 1996 in which a decree for recovery of possession of an immovable property was granted by the court. Admittedly after the passing of the decree the plaintiff/decree holder had transferred the property in favour of two others for valuable consideration. The decree sought to be executed by the decree holder under the above circumstance was challenged by the judgment debtor. The execution court upholding that contention had previously dismissed the execution petition. The order of the execution court being challenged before this court by the decree holder in C.R.P No.774 of 2004, setting aside that order, this court directed the decree holder to implead his purchasers also in the execution proceedings. In the order dated 06/12/2004 this court made clear that the decree holder “can be allowed to execute the decree on condition that the purchasers of the property is made a party to the proceedings”. Pursuant to the orders passed in revision the decree holder moved an application for impleading the purchasers of the property in the execution proceedings. The C.R.P No.245 OF 2006 Page numbers execution court allowed the impleadment of the purchasers as additional decree holders in the execution petition. Meanwhile the judgment debtor, the respondent in the revision, had moved a review petition before this court for reviewing the order passed in the revision. That revision petition was also dismissed by this court vide order dated 06.06.2005. After impleadment of the purchasers as additional decree holders the execution court again considered the executability of the decree in view of the challenge canvassed again by the judgment debtor. After hearing both sides the execution court upholding the challenge canvassed by the judgment debtor dismissed the execution petition holding that the 1st decree holder/plaintiff is not legally entitled to execute the decree. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. Normally before the execution court the parties to the decree can resist the execution of the decree only on grounds which would show that the decree is a nullity or the court which passed the decree has no jurisdiction to do so. In the present case executability of the decree is challenged by the judgment debtor, who suffered a decree of eviction and, therefore, bound by the decree, contending that the decree holder had transferred the property covered by the suit in favour of another. The transferee of the C.R.P No.245 OF 2006 Page numbers property alone is competent to execute the decree appears to be tenor of the objection raised impeaching the competency of the decree holder. It is trite law that a decree holder by reason of transfer of property would not be deprived of his right to execute the decree especially when the decree relates to immovable property. Further more in this case in the previous revision this court has already held that the decree holder can be allowed to execute the decree on condition that the purchasers of the property is made a party to the proceeding. If the purchaser is made a party to the proceeding then it was not open to the court to examine the challenge as to the inexecutability of the decree on the basis of the objection raised by the judgment debtor when this court has categorically stated that the decree holder on such impleadment can execute the decree. Interpretation placed by the counsel for the judgment debtor on the order passed by this court over which there was no ambiguity at all appeared to be more convincing to the executing court to hold that the 1st decree holder/plaintiff was incompetent to execute the decree. At the time of hearing the learned counsel for the judgment debtor brought to my notice that the purchasers who have been impleaded as additional decree holders have not even filed a vakalath enabling them to execute the decree along with the decree holder. If that was so, no doubt, it is a defect which if not C.R.P No.245 OF 2006 Page numbers rectified will have a decisive effect in continuing with the execution of the decree. In view of the earlier order passed by this court when the purchasers are impleaded as additional decree holders along with the decree holder in whose favour the decree had been passed there should be something on record indicating that they had conferred authority for executing decree. The respondents 4 and 5 in the present revision are the additional decree holders. The learned counsel appearing for them supporting the decree holder submitted that a vakalath will be filed before the court below on their behalf as well with a petition seeking permission to execute the decree jointly with the decree holder in the event of the order being set aside and E.P restored to file. The order passed by the court below allowing the impleadment of purchasers as additional decree holders when they have not come on their own accord and that too without notice to them, as pointed out by the learned counsel for the judgment debtor, is not only irregular but improper. Anyhow the impleadment has been carried out by adding them as additional decree holders in the execution proceedings. In the light of the submission made by the counsel appearing for the additional decree holders so impleaded, I find, no further enquiry on their impleadment is called for. In any view of the matter the order passed by the learned Principal Munsiff dismissing the execution C.R.P No.245 OF 2006 Page numbers petition cannot be sustained. Setting aside the order, the execution court is directed to take back the execution petition on file. The additional decree holders shall be provided an opportunity to file a valuation on their behalf for executing the decree jointly with the decree holders. Parties are directed to appear before the execution court on 01/06/2010. Revision is disposed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv