IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 RSA.NO. 372 OF 2010() ------------------------------- AS.184/2007 OF FIRST ADDITIONAL DISTRICT COURT, KOZHIKODE E.A. NO.217 OF 2001 IN E.P. NO.44 OF 2001 IN OS.355/1995 OF PRL.M.C.,KOZHIKODE-II .................... APPELLANTS – APPELLANTS - PETITIONERS ------------------------------------------------------------ 1. P.K. VALIYA MOHAMMED, S/O. AHMED, PATERIKUNNATH HOUSE, CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE. 2. N. MOIDEEN, S/O. KOYAKUTTY, NADAKASSERY HOUSE, POST NALLALAM, KOZHIKODE. 3. N. MOIDEENKOYA, S/O. BEERAI, NANNIYATT HOUSE, POST NALLALAM, KOZHIKODE. 4. P. ADBUL RAHIMAN, S/O. MOIDEENKOYA, PARAKKOT HOUSE, NALLALAM, KOZHIKODE. 5. A. HASSAN, S/O. MUHAMMED, AARAMKUNI HOUSE, NALLALAM, KOZHIKODE. 6. P.K. CHERIYA MOHAMMED, S/O. MOIDEENKOYA, PATTERIKUNNATH HOUSE, POST NALLALAM, KOZHIKODE. 7. C.K. MOHAMMEDKOYA, S/O. KAMMU, NALLALAM, KOZHIKODE. 8. C.P. SULAIMAN, S/O. ASSAN, CHELAPPURAMBATH HOUSE, NALLALAM, KOZHIKODE. 9. P.K. AHAMMED KOYA, PATTERIKUNNATH HOUSE, NALLALAM, KOZHIKODE. 10. P.P. IBRAHIM, S/O. ADHRUMANKUTTY, PATHUMKANDAM PARAMBA, NALLALAM, KOZHIKODE. 11. A. MUJEEB, S/O. MOHAMMED, NALLALAM, KOZHIKODE. 12. C.K. MOIDEENKOYA, S/O. MOHAMMEDKOYA, NALLALAM, KOZHIKODE. 13. P.K. MUSTHAFA, S/O. MOIDEENKOYA, NALLALAM, KOZHIKODE. 14. C.K. MOHAMMED KOYA, S/O. MOIDEENKOYA, CHEPPUMKANDY HOUSE, NALLALAM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): - RESPONDENTS -RESPONDENTS ------------------------------------------------------------------------ 1. S.V. MAMUKOYA, S/O. ABDULLAKOYA, SAKKATH VEETTIL HOUSE, EDAKKAD AMSOM, PUTHIYANGADI DESOM OF KOZHIKODE. 2. CHERUVANNUR NALLALAM PANCHAYATH, REPRESENTED BY ITS SECRETARY, NALLALAM. 3. AYISHA, W/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 4. MOHAMMED ALI, S/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 5. NASEEMA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 6. RAHIMA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 7. JAMEELA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 8. ABBAS, S/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 9. SAIFUNNISA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 10. NAZZARA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 11. SAMEERA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. 12. SAHEERA, D/O. HASSAN, RESIDING AT KACHINANTHODY, NALLALAM, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.372 of 2010 ================================= Dated this the 6th day of April, 2010 J U D G M E N T Appellants challenge the order of executing court in E.A. No.217 of 2001 in E.P. No.44 of 2001 in O.S. No.355 of 1995 as confirmed by the first appellate court in A.S. No.184 of 2007. At a time when the decree holders in O.S. No.355 of 1995 were executing the decree for recovery of possession they obtained as against the judgment debtor, appellants stepped in with a claim petition stating that they are in possession of the suit property, are not parties to the suit and that decree itself is void having obtained by fraud and collusion between decree holders and the judgment debtor. R.S.A. No.372 of 2010 -: 2 :- They also claimed that judgment debtor had no right in the building in question and that the land with the building was gifted in favour of the judgment debtor which was acquired by the Government for widening the road and building was demolished. As such decree holders do not have any right over the said building. Decree holders objected the claim petition stating that appellants have no right or interest over the suit property and that judgment debtor was a tenant of Imbichammadaji under whom decree holders claim. It is also the case of the decree holders that appellants are only licensees under the judgment debtor. In the trial court one of R.S.A. No.372 of 2010 -: 3 :- the appellants gave evidence as P.W1 and stated about the case including that the decree in O.S. No.355 of 1995 was obtained by fraud and collusion as above stated. He also referred to appellants' right to remain in possession of the suit property. Trial court found against the claim of appellants and dismissed the petition. That was confirmed by the first appellate court. 2. According to the decree holders who objected the claim petition appellants are licensees under the judgment debtor to whom the building was given on rent. There was an earlier rent control proceeding initiated by the decree R.S.A. No.372 of 2010 -: 4 :- holders against the judgment debtor and since the Rent Control Court found that there was bona fide dispute parties were relegated to a civil court. It was thereafter decree holders filed the suit. Though initially the suit was dismissed, decree holders were successful in getting a reversal of the decree at the hands of the first appellate court and they were given recovery of possession of the property from the judgment debtor. 3. Now substantial questions of law urged for a decision are whether the suit which resulted in the decree under challenge is a continuation of the rent control R.S.A. No.372 of 2010 -: 5 :- proceeding so that eviction could be granted on the grounds sated under Section 11 of Act 2 of 1965 and whether when the building which was the subject matter of the lease itself collapsed the lease continued to survive. Yet another question of law raised is regarding the alleged fraud and collusion. Learned counsel for appellants would contend that above aspects were not considered by the courts below and hence the dismissal of E.A. No.217 of 2001 is bad. 4. Questions urged before me are not really available for the appellants to be raised in the execution of the decree which the decree holders have obtained against R.S.A. No.372 of 2010 -: 6 :- the judgment debtor. Those questions are to be raised by the judgment debtor in the appeal to ward off the decree for eviction. There is no case for the appellants that they are tenants under the decree holders or claiming under the decree holders. Therefore the questions urged are not available for the appellants to be raised in execution obstructing the decree against the judgment debtor. So far as the alleged fraud and collusion what is available is the interested version of P.W.1 which the courts below were not impressed. There is no evidence for independent right of appellants to occupy the suit property. What is produced is R.S.A. No.372 of 2010 -: 7 :- Ext.A1 which does not take the appellants anywhere. In the absence of any independent right for the appellants to cling on the suit property they cannot go against the decree holders executing the decree against the judgment debtor. Viewed in that line I do not find any infirmity in dismissing the claim petition and no substantial question of law do arise for a decision. 5. It is pointed out by the learned counsel for appellants that appellants have already filed O.S. No.645 of 2001 in the court of learned Munsiff, Kozhikode for a declaration that the decree is O.S.No.355 of 1995 is R.S.A. No.372 of 2010 -: 8 :- fraudulently obtained and therefore is not valid. Learned counsel submits that appellants may be permitted to raise their contention regarding fraud and collusion in that suit. I make it clear that if any such suit has been preferred it will be open to the appellants to proceed with that suit as the law provides. With the above observations, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv