IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Ex.FA.No. 5 of 2009() --------------------- AGAINST THE ORDER DATED 16/12/2008 IN IA.2543/2006 IN OS.379/1982 of I ADDL.SUB COURT,THIRUVANANTHAPURAM .................... APPELLANT/CLAIM PETITIONER/DECREE HOLDER: -------------------------------------------------- NEELAKANTAN NAIR, S/O.SANKARA PILLAI, SREE BHAVAN, KARIPPOORU,MALAYINKEEZHU DESOM, MALAYINKEEZHU VILLAGE, NEYYATTINKARA TALUK. BY ADV. MR. P.GOPAL RESPONDENT(S): PLAINTIFF/DEFENDANTS/JUDGMENT DEBTORS: ------------------------ 1. K.RAJAPPAN NAIR, PARVATHY VILASOM BUNGLOW, VELLOORCODE, MALAYINKEEZHU DESOM, MARUKIL VILLAGE (NOW MALAYINKEEZHU VILLAGE) NEYYATTINKARA TALUK. 2. S.AYYAPPAN NAIR, S/O.SANKARA PILLAI, PULIYARATHALACKAL PUTHEN VEEDU,KARIPPOORU, MALAYINKEEZHU DESOM, MALAYINKEEZH VILLAGE, NEYYATTINKARA TALUK. 3. P.BALACHANDRAN NAIR, POONTHOTTATHU PUTHEN VEEDU,MALAYINKEEZH DESOM, MALAYINKEEZH VILLAGE. ADV. MR. M.R.ANANDAKUTTAN FOR R1 MS.M.HEMALATHA FOR R1 MR. R.S.MADHU FOR R1 MR. MAHESH ANANDAKUTTAN FOR R1 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: EXFA.5/2009 ORDER ON I.A. 314 OF 2009 IN EXFA.5/2009 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 30.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- Ex.F.A. No.5 OF 2009 -------------------------------------------------- Dated this the 30th day of March, 2009 J U D G M E N T Petitioner in I.A. 2543 of 2006, who is not a party to the decree in O.S.379 of 1982 on the file of First Additional Sub Court, Thiruvananthapuram is the appellant. He filed I.A. 2543 of 2006 under Rule 97 of Order XXI of Code of Civil Procedure contending that he cannot be dispossessed in execution of the decree for specific performance in O.S.379 of 1982. I.A.4479 of 2002 was filed by the first respondent/decree holder under section 28(3) of Specific Relief Act for getting execution of the sale deed and delivery of possession as provided in the decree. Decree in O.S.379 of 1982 directs the respondents/judgment debtors to execute a sale deed in favour of the first respondent and also to deliver the property. 2. The case of the appellant in I.A.2543 of 2006 is that 10 cents of land claimed by the first respondent under the decree in O.S.379 of 1982, forms part of 35 cents in the possession of the appellant which originally belonged to the Ex.F.A.5/2009-A 2 second respondent and was mortgaged in favour of Smt. Ratnamma as per registered mortgage deed 408/1967 and purchased by the appellant as per registered assignment deed 2349/1967. The appellant contended that he filed O.S.698 of 2005 before the Munsiff Court, Neyyattinkara, for a declaration of his title to the said 35 cents obtained under assignment deed 2349/1967 and the suit was decreed on 21.5.2008 and A.S.74 of 2008 filed challenging the decree is pending before Sub Court and he is not a party to the decree in O.S.317 of 1982 and it is a collusive decree and in execution of the decree, first respondent is not entitled to dispossess him. In I.A.4479 of 2002 the first respondent claimed an order directing second respondent to execute the sale deed and also for delivery of the property. Learned Sub Judge disposed both the applications by a common order. I.A.2543 of 2006 was dismissed without recording the evidence, finding that second respondent/judgment debtor had filed WP(C)30401 of 2006 contending that appellant herein is in physical possession of the property and that writ petition was dismissed by High Court and therefore the claim of the appelant is barred by res judicata. Consequent to that order, I.A.4479 of Ex.F.A.5/2009-A 3 2002 was allowed with certain directions. This appeal is filed challenging the dismissal of the petition under Rule 97 of Order XXI of Code of Civil Procedure. A writ petition is filed challenging the order in I.A.4479 of 2002, which is disposed today by a separate judgment. 3. Learned counsel appearing for appellant and the first respondent were heard. 4. As rightly argued by the learned counsel appearing for the appellant, when a petition is filed under Rule 97 of Order XXI of Code of Civil Procedure is filed, Sub Judge should have disposed the application only after recording the evidence as if it is a suit. Rule 103 of Order XXI of Code of Civil Procedure makes it clear that an order passed under Rule 100 shall be have the same force and subject to the same conditions as to an appeal, as if it is a decree. Under Rule 101 all questions arising between the appellant and the first respondent or second respondent shall be adjudicated and determined in the application under Rule 97 of Order XXI and not by separate suit. Therefore it is mandatory that the executing court shall record the evidence before disposing the petition under Rule 97 of Ex.F.A.5/2009-A 4 Order XXI of Code of Civil Procedure. As it is not done, the order in I.A.2543 of 2006 is set aside. Learned Sub Judge is directed to dispose I.A.2543 of 2006 after recording the evidence of both the appellant and the respondents in accordance with law. The Sub Judge is to dispose I.A.2543 of 2006 as expeditiously as possible, avoiding unnecessary delay. M. SASIDHARAN NAMBIAR, JUDGE okb