IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 CRP.No. 152 of 2008() --------------------- AGAINST THE ORDER DATED 20/11/2007 IN EP.162/2003 IN OS.459/1972 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... REVN. PETITIONER(S): JUDGMENT DEBTORS 4 TO 11 --------------------------------------------- 1. PONNAMMA, W/O.SOOLAPANI, PANACKAL PURACKAL, KANJIRAMCHIRA MURIYIL, ARYAD SOUTH VILLAGE, CANAL WARD, ALAPPUZHA-688 007. 2. ANIRUDHAN, S/O.SOOLAPANI, PANACKAL PURACKAL, KANJIRAMCHIRA MURIYIL, ARYAD SOUTH VILLAGE, CANAL WARD, ALAPPUZHA-688 007. 3. BHASKARAN, S/O.VASUKUTTY, PARAMBIL VEEDU FROM PANACKAL PURACKAL, MARARIKULAM, CHETHI P.O., ALAPPUZHA. 4. PURUSHAN, S/O.VASUKUTTY, PANACKAL PURACKAL, KANJIRAMCHIRA MURIYIL, CANAL WARD, ALAPPUZHA-688 007. 5. PUSHKARAN, S/O.VASUKUTTY, PARAMBIL VEEDU FROM PANACKAL PURACKAL, MARARIKULAM, CHETHI P.O., ALAPPUZHA. 6. PRABHAKARAN, S/O.VASUKUTTY, PARAMBIL VEEDU FROM PANACKAL PURACKAL, MARARIKULAM, CHETHI P.O., ALAPPUZHA. 7. GANGADHARAN, PARAMBIL VEEDU FROM PANACKAL PURACKAL, MARARIKULAM, CHETHI P.O., ALAPPUZHA. 8. NEELAMBHARAN, S/O.VASUKUTTY, PARAMBIL VEEDU FROM PANACKAL PURACKAL, MARARIKULAM, CHETHI P.O., ALAPPUZHA. BY ADV. SRI.R.AZAD BABU CRP NO.152/2008 2 RESPONDENT(S): ADDL.DECREE HOLDERS 2 TO 4 ----------------------------------------- 1. DAYANANDAN RUDHRANI,KARANGATTUSSERIL, KANJIRAMCHIRA MURIYIL, ALAPPUZHA.: PRESENT ADDRESS: THEKKE THUPPASSERIL, VELLANATHURUTHU, CHERIYAZHEEKKAL P.O., KARUNAGAPPALLY, KOLLAM DIST. 2. THANKACHAN BHAVANI, AZHIYAKATH, KANJIRAMCHIRA MURIYIL, MANGALAM WARD, THUMPOLY P.O., ALAPPUZHA. 3. BHASKARAN INDHRANI, KANJIRAMCHIRA MURIYIL, ALAPPUZHA. PRESENT ADDRESS: KOOTTINTE PADEETTATHIL, THARAYIL KADAVU, VALIYAZHEEKKAL P.O., KANDALLOOR, KAYAMKULAM-690 535. ADV. SRI.JOBY CYRIAC FOR R1 TO R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.152 of 2008 -------------------------------------- Dated this the 16th day of November, 2010. JUDGMENT Judgment debtor Nos. 4 to 11 in E.P.No.162 of 2003 in O.S.No.459 of 1972 of the court of learned Additional Munsiff, Alappuzha are the petitioners before me challenging executability of the decree on the ground of limitation. Without going into the factual issues involved in the matter, executing court found that E.P.No.162 of 2003 filed on 29.10.2003 is not time barred. That order is under challenge. Learned counsel for petitioners contend that executing court has not gone into the questions involved and rather has disposed of the objection by a sweeping observation that the executing court prefers not to countenance the argument advanced by the petitioners that the execution petition is not maintainable as barred by limitation. It is however seen that executing court has referred to other relevant issues on the point. 2. The chronological order of the events which is not disputed before me by counsel on both sides that the decree was passed in the present case on 18.09.1976 allowing the original plaintiff (whose legal representatives are the respondents) to recover possession of a total extent of 52 cents. Petitioners and others challenged that decree in A.S.No.7 of 1978. But that appeal was dismissed on 31.01.1989. On 06.12.1983 respondents filed E.P.No.402 of 1983. In the meantime, father of petitioner No.2 filed O.S.No. 134 of 1984 in respect CRP No.152/2008 2 of the same subject matter. There was an order of injunction against execution of the decree in O.S.No.459 of 1972 and that suit was ultimately dismissed on 22.12.1989. Appeal arising therefrom was dismissed on 11.11.1991. On 13.02.1995 a stranger filed O.S.No.111 of 1995 claiming right over the property and during pendency of that suit also there was an order of injunction against execution of decree in O.S.No.459 of 1972. That suit was decreed in part on 29.10.1996 as per which entitlement of respondents was limited to half of the suit property (ie. 26 cents). Appeal arising from that judgment and decree was dismissed on 31.03.2001. In the meantime E.P.No.402 of 1983 was dismissed for default on 27.09.2001. Respondents filed E.P.No.15 of 2003 in O.S.No.111 of 1995 on 29.01.2003. The said execution petition was dismissed on 17.10.2003. Present execution petition (E.P.No.162 of 2003 in O.S.No.459 of 1972) was filed on 29.07.2003. That execution petition according to the petitioners is barred by limitation. Learned counsel for respondents submits that the decree in O.S.No.459 of 1972 was superseded by the decree in O.S.No.111 of 1995 and the appeal arising therefrom was dismissed on 31.03.2001 and hence execution petition filed on 29.10.2003 is not time barred. 3. According to the petitioners period of 12 years has to be computed from 13.02.1995. Learned counsel for petitioners contend that even before 13.02.1995 respondents had filed E.P.No.402 of 1983 on 06.12.1983 and hence they cannot be pleaded that the period of limitation has to be CRP No.152/2008 3 computed from 13.02.1995. It is revealed that though decree in O.S.No.459 of 1972 was passed for recovery of the entire 52 cents on 18.09.1976 and the appeal was dismissed on 31.01.1989 there was an order of injunction against execution of decree in O.S.No.459 of 1972. Those challenges ended only by dismissal of the appeal arising from O.S.No.111 of 1995 on 31.03.2001. It is not disputed that in O.S.No.111 of 1995 decree was passed on 29.10.1996 in respect of the subject matter of the present suit and execution petition. That decree read as follows: “Suit is decreed in part as under:- The plaintiff is granted a decree declaring his title and possession over plaint item No.1 unaffected by the decree in O.S.No.459/72 of the Munsiff's Court, Alappuzha and the plaintiff is granted a perpetual injunction restraining the defendants 1 to 5 from taking delivery of plaint item No.1 property pursuant to the decree passed in O.S.No.459/72 of the Munsiff's Court, Alappuzha. In the circumstances of the case the parties are directed to bear their respective costs.” CRP No.152/2008 4 Though the decree states that the said decree is passed 'unaffected by the decree in O.S.No.459/72', decree in O.S.No.111 of 1995 will take effect. That is clear from the latter part of the decree in O.S.No.111 of 1995 that respondents are prevented from taking delivery of item No.1 in O.S.No.111 of 1995 (which is half of the 56 cents, which is the suit property in O.S.No.459 of 1972) pursuant to the decree in O.S.No.459 of 1972 . It is therefore clear that pursuant to the decree dated 29.10.1996 in O.S.No.111 of 1995 decree in O.S.No.459 of 1972 stood modified. If that be so respondents were entitled to compute period of 12 years from 29.10.1996. Even prior to that there were orders of injunction restraining execution of the decree. In the circumstances I do not find any illegality in the executing court holding that E.P.No.162 of 2003 is not barred by limitation. Revision is dismissed. I.A.Nos.448 of 2008 & 2046 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks