IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Ex.SA.No. 17 of 2010 ------------------------------ [AGAINST THE DECREE AND JUDGMENT DATED 22/06/2010 IN AS.NO.333/2007 OF I ADDL. DISTRICT COURT, PALAKKAD, THE ORDER DATED 24/10/2007 IN E.A. NO.92/2007 IN E.P.NO.292/2005 IN OS.NO.41/2003 OF MUNSIFF COURT, CHITTUR] .................... PETITIONER/APPELLANT/PETITIONER/CLAIM PETITIONER: ------------------------------------------------------------------------------------- N.KRISHNANKUTTY, S/O.NARAYANAN, AGED 68 YEARS, RESIDING AT KARIMANNU, PERUMPARA CHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 555. BY ADV. SRI.RAJESH SIVARAMANKUTTY. RESPONDENTS/RESPONDENTS/DECREE HOLDER/JUDGEMENT DEBTOR: ---------------------------------------------------------------------------------------------------------- 1. RAMANUNNI MOOSSATH, S/O.DHAMODARANUNNI MOOSSATH, AGED ABOUT 53 YEARS, INDHIRA MANNIRAM, KANNANTHARA, CHUTTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 101. 2. SAROJINI, W/O.KRISHNANKUTTY, AGED 50 YEARS, RESIDING AT KARIMANNU, PERUMPARA CHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 555. BY THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- Ex.S.A No.17 of 2010 -------------------------- Dated this the 3rd August, 2010 J U D G M E N T Aggrieved by the concurrent findings against him, the claimant in E.A No.92/97 in E.P. 292/2005 in O.S 41/2003 before the Munsiff Court, Chittur has come up in appeal. 2. Petitioner laid the petition under Order 21 Rule 97 of C.P.C claiming exclusive right of property i.e. the subject matter of execution. It is contended that the property that was sought to be delivered to the claim petitioner actually belonged to him. 3. Petitioner claimed that the petition schedule property was part of the property purchased by him as per sale deed No.309/1976. Plaintiff had put up a building therein. Plaintiff claimed that he was in absolute possession and enjoyment of the plaint schedule property. According to him, the 1st respondent had obtained a decree against the 2nd respondent. In execution of the decree Amin came to the property and attempted to deliver the property. Petitioner points out that he had Ex.S.A No.17 of 2010 2 shown all the documents to the Amin claiming that property belonged to him and it is not a part of the property covered by the decree passed in O.S No.41/2003. The allegation is that later Amin had made a false report and that necessitated the petition to be filed. 4. Decree holder opposed the application. It is contended by him in the counter statement that application has been filed only with the sole intention of protracting the execution proceedings. What was sought is only the execution of the decree which contains schedule and there is no justification in the claim petition filed by the claim petitioner. It is pointed out that the claim petitioner is none other than the husband of the 2nd respondent herein and he was aware of the proceedings and he had shown the property when the commissioner came to identify the same. It is also pointed out that there is no merit in the application and it is liable to be dismissed. 4. The trial court raised necessary issues for consideration and Exts.A1 to A10 were marked from the side of the petitioner. Ex.S.A No.17 of 2010 3 5. The execution court found that O.S 41/2003 was suit for fixation of boundary, recovery of possession and for injunction and that was decreed. The suit related to a property covered by Ext.A1 sale deed No.1174/2001 which absolutely belonged to 2nd respondent. She had obtained the same by way of settlement deed No.972/2000 executed by her husband who is none other than the petitioner herein. 6. It was contended on behalf of the petitioner that the sale deed based on which decree was granted did not take in the building. On the trial side, Court had considered this issue and thereafter had passed the decree. 7. Obviously the petitioner cannot ask the court to go behind the decree and ascertain whether the decree was proper and justified. What was sought to be delivered is the property covered by the decree. The executing court has to execute the decree as it stand. It is made clear that if the petitioner has a case that the property that is now sought to be delivered is not the property covered by the decree , the courts below will consider the claim Ex.S.A No.17 of 2010 4 putforward by the petitioner and determine the issue in appropriate proceedings in accordance with law. The appeal is without merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE ma