IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 OP(C).No. 2930 of 2011(O) ------------------------ OS.214/1989 of ADDL.SUB COURT, KOTTAYAM .................. PETITIONER / PETITIONER / 10TH JUDGMENT DEBTOR : ---------------------------------------------------------------------------------- MARIAMMA JOSEPH, W/O.JOHN JOSEPH KOCHUVEETTIL HOUSE, NEDUMKUNNAM VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS RESPONDENTS / RESPONDENTS / DECREE HOLDERS : ------------------------------------------------------------------------------- 1. ROSAMMA MATHEW, CHERUKKADU HOUSE, THATHAMPALLY, ALAPPUZHA-688013 2. VARKEY, S/O.ITTOOP, THUNDIYIL HOUSE, KELAKAM, KANNOOR-670 674 3. LAISAMMA, D/O.VARKEY, THUNDIYIL, W/O.BABU T.V., H.NO.295/XIII, KURICHY, SACHIVOTHAMAPURAM, KOTTAYAM - 686 532. 4. MARY JOSEPH, W/O.JOSEPH, THUNDIYIL HOUSE KELAKAM, KANNOOR-670674. 5. BOBBY JOSEPH, S/O.JOSEPH, THUNDIYIL HOUSE, KELAKAM, KANNOOR-670 674. 6. SHYNI JOSEPH, D/O.JOSEPH, THUNDIYIL HOUSE, KELAKAM, KANNOOR-670674. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2930 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE FINAL DECREE IN I.A. NO. 729 OF 2003 IN O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED 30-9-2006. EXT.P2 : COPY OF THE JUDGMENT O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED 24-6-1997. EXT.P3 : COPY OF THE PRELIMINARY DECREE IN O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED 28-2-2002. EXT.P4 : COPY OF THE DEATH CERTIFICATE DATED 24-3-2011. EXT.P5 : COPY OF THE DEATH CERTIFICATE DATED 23-3-2011. EXT.P6 : COPY OF THE DEATH CERTIFICATE DATED 19-3-2011. EXT.P7 : COPY OF THE 'B' DIARY IN FINAL DECREE PROCEEDINGS OF O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM. EXT.P8 : COPY OF THE COMMISSION REPORT IN I.A. NO. 729 OF 2003 IN O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED 10-7-2006. EXT.P9 : COPY OF E.A. NO. 55 OF 2010 IN E.P. NO. 221 OF 2008 IN O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED NIL. EXT.P10 : COPY OF THE OBJECTION IN E.A NO. 55 OF 2010 IN E.P. NO.221 OF 2008 IN O.S NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED 16-1-2011. EXT.P11 : COPY OF THE ORDER IN E.A. NO. 55 OF 2010 IN E.P. NO. 221 OF 2008 IN O.S. NO. 214 OF 1989 OF THE SUB COURT, KOTTAYAM DATED 17-8-2011. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2930 of 2011 ==================================== Dated this the 05th day of September, 2011 J U D G M E N T Challenge in this proceeding is to the execution of final decree in O.S. No.214 of 1989 of the court of learned Sub Judge, Kottayam. Exhibit P2, judgment and preliminary decree were passed on 24.06.1997. That was followed by Ext.P3, supplementary preliminary decree dated 28.02.2002. Thereafter the final decree was passed and the decree holders are executing that decree. At that time, petitioner came forward with three objections – that the final decree is obtained by fraud as no notice was given to the petitioner and her husband, the 9th defendant; that final decree is bad in law since defendants 1, 2 and 6 were not alive when the final decree was passed, and; thirdly, the entire properties covered by the preliminary decree is not included in the final decree. Learned Sub Judge, by the impugned order rejected the objections. 2. It is seen from Exts.P4 to P6 that defendants 1, 2 and 6 expired on 07.09.1994, 06.09.2003 and 04.02.2004, respectively while the preliminary decree was passed on 24.06.1997, Ext. P3, O.P(C) No.2930 of 2011 -: 2 :- supplementary preliminary decree was passed on 28.02.2002 and Ext.P1, final decree was passed on 30.09.2006. It is not disputed before me that defendants 1, 2 and 6 had assigned their share in the suit property and the assignees were on record at all times. If that be so, question of abatement on account of death of defendants 1, 2 and 6 (the first defendant expired even before passing of the preliminary decree) does not arise. Moreover, no question of abatement arises after passing of the preliminary decree. 3. Another argument is that the entire property referred to in the preliminary decree is not the subject matter of the final decree and hence petitioner lost the benefit of Sec.43 of the Transfer of Property Act. As rightly found by the court below, that is not a matter which the executing court is required to look into. 4. Yet another ground alleged is regarding fraud. It is alleged that petitioner and her husband were not given notice of the final decree proceeding and thus there is fraud in obtaining the final decree. If no notice of final decree proceeding was given to petitioner and her husband as pleaded by the petitioner, it is open to the petitioner to challenge the final O.P(C) No.2930 of 2011 -: 3 :- decree in appropriate proceeding. Executing court is not required to go into that question. I do not find any reason to interfere with the order of the executing court. 5. It is submitted that petitioner has already filed application for review of the final decree and that application is pending and until disposal of the said application, the execution proceeding may be kept in abeyance. I make it clear that if any such application is pending in the trial court, petitioner can request the trial court to keep the execution proceeding in abeyance until disposal of the application and if any such request is made it is for the trial court to pass appropriate orders in that regard, as provided under law and after hearing all parties concerned. Original Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv