IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 CRP.No. 25 of 2009 ------------------------------- EA 176/2007 IN EP127/1993 IN OS.161/1983 of MUNSIFF COURT, KAYAMKULAM .................... REVN. PETITIONER/PETITIONER (ADDL.12TH CP): ANSARI, KANKALIL VEEDU VERUVALLYBHAGOM MURI, KEERIKKAD VILLAGE. BY ADV. SRI.R.RAMADAS RESPONDENTS/COUNTER PETITIONERS: 1. SULEKHA BEEVI, W/O.KOYAKUTTY NEDIYATHARA VEEDU, PERINGALA MURI, KAYAMKULAM VILLAGE. 2. MUHAMMED SHEREEF, S/O.KOYAKUTTY, DO.DO. 3. RAMLATH, D/O.KOYAKUTTY, DO.DO. 4. IRSHADA, D/O.KOYAKUTTY, DO.DO. 5. RASHEEDA, D/O.KOYAKUTTY, DO.DO. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.25 of 2009 -------------------------- ORDER Revision petitioner is the petitioner in E.A. No.176/07 in E.P.No.127/93 in O.S.No.161/83 on the file of the Munsiff's Court, Kayamkulam. The said application was filed by the petitioner praying that the proceedings in E.A.No.27/94 be dropped. The said EA was dismissed. Hence this revision petition. 2. E.A.No.27/94 was an application filed by the tenant of the building in the scheduled property in O.S.No.161/83 at the time of eviction for re- delivery of the building, as, instead of ordering symbolic delivery, actual physical possession of the building in the scheduled property, which was occupied by him, was delivered over to the decree holder. According to Koyakutty, who filed E.A.No. 27/94, he was a building tenant under the decree holder in O.S.No.161/83 on the file of the Munsiff's Court, Kayamkulam even before execution CRP 25/09 2 of the mortgage in favour of the judgment debtor in the case; that therefore, only symbolic delivery could be effected and that inasmuch as actual physical possession of the scheduled building was also delivered over, the building, which was in his occupation as a tenant, has to be re-delivered to him. The execution court allowed E.A.No.27/94 and ordered re-delivery. That was confirmed in appeal also by the Additional District Court, Mavelikara in A.S.No.165/95. 3. It is submitted that petitioner and one Suni Rasheed got assigned the rights of the decree holder and got themselves impleaded as additional appellants in A.S.No.165/95. However, while A.S.No. 165/95 was pending, Koyakutty died and his legal representatives were impleaded as additional respondents 2 to 6 in that appeal. The appellate court, which dismissed the appeal confirming the order on E.A.No.27/94, held that the legal representatives of deceased Koyakutty are entitled CRP 25/09 3 to move the executing court for re-delivery of the property. Accordingly, in E.A.No.27/94, additional petitioners 2 to 5 were impleaded and they were the son and daughters of deceased Koyakutty, as, in the meanwhile, the widow of Koyakutty also passed away. 4. It is the case of the petitioner that himself and Suni Rasheed, who got assignment of the decree schedule building during the pendency of A.S.No.165/95 before the District Court, Mavelikara, got themselves impleaded as respondents 12 and 13 in E.A.No.27/94 and raised contentions that three of the legal heirs of deceased Koyakutty had assigned their inherited tenancy right to him by virtue of Release Deed No.2083/07 and that therefore, he has become a statutory joint tenant along with the petitioners in E.A.No.27/94 and hence, the order for re-delivery in E.A.No.27/94 has become inexecutable and also filed E.A.No. 176/07 seeking for an order dropping the proceedings in E.A.No.27/94. CRP 25/09 4 5. The execution court, which considered the application filed by the petitioner, observed that the three persons, from whom the petitioner got assignment, posing themselves as the legal heirs of deceased tenant Koyakutty, are not the persons impleaded as the legal heirs of deceased Koyakutty in A.S.No.165/95 and in E.A.No.27/94; that there had been no adjudication of the rights of the executants of the said documents in favour of the petitioner; that even if the executants of the documents are also the legal heirs of deceased Koyakutty, it cannot be said that the order in E.A. No.27/94 has become inexecutable; that the effect of the alleged assignment, if at all, is only to enable the decree holders not to implead the executants of the said assignment deed and that the assignment, however, in no way affects the right to get re-delivery ordered vide E.A.No.27/94 in favour of additional petitioners in E.A.No.27/94, who are impleaded as the legal heirs of deceased Koyakutty CRP 25/09 5 and consequently, dismissed E.A.No.176/07. It is the said order passed by the execution court on E.A.No.176/07, refusing to drop the proceedings in E.A.No.27/94, that is assailed before me in this revision. 6. It is vehemently contended before me by the learned counsel for the petitioner that when right of at least a few of the legal heirs of the original deceased tenant is got executed in favour of the petitioner, he becomes a co-owner along with the other legal heirs of deceased tenant Koyakutty and therefore, the order in E.A.No.27/94 has become inexecutable. I am not prepared to accept the contention and repel the same. When re-delivery was ordered in favour of the original tenant and a few of his legal heirs, who continued in occupation of the scheduled building, prosecute the petition for re-delivery, the decree holder cannot overreach the order of re-delivery by getting assignment from some other alleged legal heirs, even if they are CRP 25/09 6 the real legal heirs, but are not in occupation of the building and pray for petition for re-delivery being dropped. Such of the legal heirs of the original tenant, who are in actual physical occupation of the building, in continuation of the occupation of the original deceased tenant Koyakutty, are entitled to all the rights which deceased Koyakutty had to the exclusion of other legal heirs, who are not in occupation of the tenanted premises. The order of re-delivery in E.A. No.27/94 is, therefore, executable and the court below has rightly dismissed E.A.No.176/07, praying for an order dropping the proceedings in E.A.No. 27/94. This revision petition is devoid of any merit and is dismissed. 20th January, 2009 (K.P.Balachandran, Judge) tkv