IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 Ex.FA.No. 41 of 2010() ---------------------- AGAINST THE ORDER DATED 30/06/2010 IN E.A.13/10 IN E.A.192/09 IN E.P.25/03 IN OS.337/1997 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PETITIONER -------------------------------- P.G.GOPALAKRISHNAN, S/O.P.K.GOVINDAN ACHARI, PUTHENPARAMBIL VEEDU, OLESHA P.O., KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): --------------- 1. DR.JAMES THAYIL, S/O.T.C.LUKOSE, THAYIL VEEDU, AYMANAM, KOTTAYAM. 2. K.RAMAKRISHNAN, S/O. GOVINDAN ACHARI, PUTHENPARAMBIL, PEECHI P.O., THRISSUR. THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- Ex.F.A.41 OF 2010 ------------------------------------------- Dated this the 6th day of August, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. This appeal is against an order of the court below, overruling an obstruction to delivery of property in execution, in consonance with a decree for specific performance of a contract for sale. The sale deed having been executed, the plaintiff moved for an order putting him in possession. At that time, the appellant, who is none other than the brother of the judgment debtor, filed an application before the court below, invoking Order XXI Rule 97 C.P.C. He, accordingly, obstructed anticipating that he would be dispossessed. The court below found that there was an earlier suit as O.S.727/03, of which, Ext.B1 is the judgment. It is not a matter in dispute that the issue involved in the obstruction petition was either directly or substantially in issue in O.S.727/03, or, at least was a matter which might and ought to have been raised in that suit in terms ExFA.41/10 2 of Section 11 of C.P.C. Barring Ext.B1, the judgment in that suit, there was no other material before the court below. The obstruction petitioner did not tender evidence. Learned counsel for the appellant states that the obstruction petitioner had placed on record before the court below a commissioner's report and other materials in Ext.B1 case. But, in our view, the court below, quite rightly, took the view that no such report has been adduced in evidence. A commissioner report in another case cannot be brought in as part of evidence in a different case by merely placing it before the court. Notwithstanding that, we are satisfied that the case is rightly held to be barred by res judicata. The appeal fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.10/08.