IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 Ex.SA.No. 2 of 2010 ---------------------------- [AS.NO.155/2009 OF SUB COURT, PERUMBAVOOR, OS.NO.556/2001 OF MUNSIFF'S COURT,MUVATTUPUZHA] .................... APPELLANT/APPELLANT/CLAIM PETITIONER: ------------------------------------------------------------------ NAZEEMA, AGED 40, W/O.ABDUL SALAM CHAMAKKALYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN, SRI.S.SREEDEV. RESPONDENTS: ------------------------ 1. M.E.SREEDHARAN, S/O.EACHARAN, MANDAPATHIL HOUSE, EAST VAZHAPPILLY, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT. 2. C.A.ABDUL SALAM, CHAMAKKALYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. R1 BY ADV. SRI.BOBBYMATHEW KOOTHATTUKULAM. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- Ex.SA No.2 of 2010 ------------------------------------- Dated 27th May 2010 Judgment The first respondent herein obtained a decree against the second respondent. 2. The suit was one for money. The decree holder took out execution of the decree as per EP No.98/05 in OS No.556 of 2001. It appears that the decree holder sought attachment of the property. The attachment was ordered. Then the petitioner herein came forward with a claim petition under Order XXI Rule 58 CPC, pointing out that the property belonged exclusively to her and not liable to attachment. Even though the name of the judgment debtor was shown in the document, he had no right whatsoever over the property and he was included in the document only for a name sake. 3. It appears that no evidence whatsoever was adduced by the petitioner before the Trial Court and the Ex.SA No.2/10 2 only document produced was Ext.B1 to consider whether the claim made by the petitioner is correct or not. Going by the document, the Trial Court came to the conclusion that the judgment debtor was a co-owner and there was no evidence to show that it was otherwise. Accordingly, the claim petition was dismissed. 4. The appellant carried the matter in appeal as AS No.155/09 before the Sub Court, Perumbavoor. The lower Appellate Court, on an independent consideration of the evidence, came to the same conclusion as that of the Trial Court and dismissed the appeal. The said order is assailed in this Appeal. 5. The learned counsel for the appellant raised two contentions before this Court. They are (1) Since the claim petition is under Order XXI Rule 58 CPC, issues had to be raised (2) the appellant was not given an opportunity to adduce her evidence. 6. On going through the orders of the lower Court, it can be seen that both the contentions are without Ex.SA No.2/10 3 any basis whatsoever. The lower Appellate Court has extracted as to what has transpired on the date on which it was posted, which reads as follows : “No representation. Kept aside. Petition represented. No oral evidence for the petitioner. Heard. For orders to 3.6.2006.” 7. If the appellant has a case that the said narration in the order of the Trial Court is contrary to facts, her remedy lies in filing a review petition. It also needs to be noticed that the order is extracted in the order of the lower Appellate Court on 27.05.2006. Thereafter, the case was posted for orders to 03.06.2006. If the appellant had a case that she was precluded from adducing evidence, nothing prevented her from filing a petition seeking to re- open evidence. No such steps appear to have been taken by her. There is nothing to show that the appellant had any misapprehension regarding the matter. It needs to be noticed that the suit is of the year 2001 and a decree has been obtained. As rightly noticed by the courts below, the Ex.SA No.2/10 4 attempt seems to be to delay the execution. If there was any bona fide in the claim made by the appellant, she would have taken necessary steps to establish her claim. Having not done so, it cannot be said that she was precluded from adducing evidence. In the result, no grounds are made out to interfere with the Judgment and decree of the court below. This appeal is devoid of any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta Ex.SA No.2/10 5