IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 CRP.No. 598 of 2010() --------------------- AGAINST THE ORDER DATED 22.09.2010 IN EP 41/2008 IN OPARB.4/2006 of ADDL DISTRICT COURT, ALAPPUZHA. .................... REVN. PETITIONER/APPLICANT ------------------------------ BIJU JACOB, P.T.C.TOWERS, S.S. COIL ROAD, THAMPANOOR, TRIVANDRUM-695001. BY ADV. SRI.RAJIV ABRAHAM GEORGE SRI.EAPEN ABRAHAM GEORGE RESPONDENTS/JUDGEMENT DEBTORS: -------------------------------- 1. THE KERALA WATER AUTHORITY, JALA BHAVAN,TRIVANDRUM, REP. BY ITS MANAGING DIRECTOR. 2. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, P.H.CIRCLE, KOTTAYAM. ADV. SMT.AMBIKA DEVI, SC, KWA FOR R1-2 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.598 of 2010 --------------------------------------- Dated this 26th day of November, 2010 ORDER This revision is in challenge of order dated 22-09-2010 in E.A.No.77 of 2010 in E.P.No.41 of 2008 of the court of learned Additional District Judge-I, Alleppey. There was an agreement between respondent No.2 on behalf of respondent No.1 and deceased decree holder on 27-11-1990 regarding augmentation work for the water supply scheme at Chengannur and when dispute arose the matter was referred for arbitration. Arbitrator was appointed on 28-06-2006 who passed award on 31-03-2008. Decree holder filed E.P.No.41 of 2008 on 06-09-2008 in the court of learned Additional District Judge, Alleppey to execute the award and recover the amount, according to the petitioner after the time to apply to set aside the award expired. In the meantime, decree holder died and petitioner herein, claiming to be entitled to the amount as per the award as per a Will (allegedly) executed by deceased decree holder sought her impleadment in the execution petition and disbursement of the amount. Notarised photocopy of the Will was produced. Respondents/judgment debtors objected contending that what is C.R.P.No.598 of 2010 : 2 : produced is only the photocopy and not the original Will and disputing execution of the Will. Learned Additional District Judge has dismissed E.A.No.77 of 2010 taking note of the objection raised by respondents as to execution of the Will and observing that execution of the Will is not proved as required under Sec.68 of the Indian Evidence Act (for short, “the Act”) by producing the original Will. Consequently E.P.No.41 of 2008 was dismissed. The order on E.P.No.41 of 2008 is under challenge in this revision. Learned counsel for petitioner submitted that no order was passed on E.A.No.77 of 2010 to the knowledge of petitioner. I ascertained from the court below whether such an order was passed. Learned Additional District Judge has sent by fax a copy of the order dated September 22, 2010 on E.A.No.77 of 2010 which is now appended to this paper book. I do not think it necessary to direct petitioner to produce a copy of the order since copy of the order sent by fax could be taken into account. I have heard learned counsel for respondents/judgment debtors as well. Learned counsel submits that respondents had preferred Arbitration Appeal No.3 of 2010 against order in R.P.No.258 of 2010 in arbitration O.P.No.16 of 2009 which this court dismissed vide judgment dated March 16, 2010 (Annexure-I). It is also C.R.P.No.598 of 2010 : 3 : submitted by learned counsel that information obtained from the affidavit (Annexures 2 and 3) is that annexure-I, judgment is challenged before the Supreme Court. 2. Now, I am only concerned with the dismissal of E.A.No.77 of 2010 and E.P.No.41 of 2008. No doubt, any party to the proceeding is entitled to challenge execution of the Will when it is put up against him as held by this court in Krishnan Asari Velayudhan Asari Vs. Parameswaran Pillai Madhavan Pillai (AIR 1989 Kerala 163). Hence, on the face of denial made by respondents petitioner was obliged to prove due execution of the Will as provided under law if he wished to claim right under the said Will. Learned counsel for petitioner submits that he is prepared to prove due execution of the Will or, in the alternative, implead all legal heirs of deceased decree holder so that there could be an end of the dispute. That matter is left to the option of the petitioner. It is open to him to proceed as provided under law. 3. In the light of what I have stated above and the submission of learned counsel for petitioner, it is only just and proper that order dated September 22, 2010 in E.A.No.77 of 2010 and the consequent dismissal of E.P.No.41 of 2008 are set C.R.P.No.598 of 2010 : 4 : aside. Resultantly this petition is allowed and order dated September 22, 2010 on E.A.No.77 of 2010 and E.P.No.41 of 2008 of the court of learned Additional District Judge, Alleppey in A.P.No.4 of 2006 are set aside and E.A.No.77 of 2010 and E.P.No.41 of 2008 are remitted to that court for fresh decision. Petitioner shall be given opportunity to prove due execution of the Will if he wishes to proceed with his claim under the Will, if necessary after giving notice to all the legal heirs who are otherwise entitled to inherit the asset of deceased decree holder or, as alternatively submitted by the learned counsel and if law provides so, to implead all legal heirs of deceased decree holder in E.P.No.41 of 2008 and claim relief as provided under law. Parties shall appear in the court below on 21-12-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-