KRISHNA MENON Vs. OUSEPH MICHAEL

JUDGEMENT

(1.) The decree holder in O.S. 300 of 1101 on the file of the Munsiff's Court at Ernakulam, who is the counter petitioner in M.P. 2398 of 1123 of the same court, has filed this petition seeking a revision of the order passed by the lower court on M.P. 2398. As per the redemption decree passed in his favour in O.S. 300 of 1101, he obtained delivery of the decree-properties through court on 3.10.1123. 34 cents of property comprised in Survey No. 1246 was also involved in that suit and was delivered over to the petitioner on 3.10.1123. The present controversy relates to this item of property. The petitioner in M.P. 2398 claimed to be in independent possession of this property in his own right and contended that he was wrongfully dispossessed by the decree holder in O.S. 300 of 1101. On these allegations, he filed M.P. 2398 under O. 21, R. 97 of the Cochin Civil Procedure Code (corresponding to O. 21, R. 100 of the Indian Code) and prayed for redelivery of the property. The decree holder opposed that petition and contended that it was unsustainable and entirely lacking in good faith. It was also contended that the person seeking re-delivery is only a representative-in-interest of the 9th defendant in O.S. 300 of 1101 and as such he is concluded by the orders passed in that case. The executing court overruled these objections and held that M.P. 2398 is sustainable. It is this order that is sought to be revised.

(2.) Before proceeding to consider the points raised in this Revision Petition, it is necessary to state how the contending parties trace their claim to the possession of the property in dispute, ie. 34 cents of property comprised in Survey No. 1246 of Vaduthala Desom. As already stated, the decree and the execution proceedings in O.S. 300 of 1101 are all in favour of the decree holder who is the revision petitioner. One Kotheril Achutha Menon had obtained possession of this property under as Adimachirthu granted to him from the Cherupalli Swaroopam. While he was thus in possession of the property, he granted a usufructuary mortgage in respect of this property, as well as other properties in favour of one Vareeth about the year 1080. Subsequently Achutha Menon's rights devolved on the plaintiff in O.S. 300 of 1101 and accordingly the plaintiff instituted that suit for redeeming the mortgage. The 1st defendant's son was also impleaded as the 9th defendant in the suit as a person in enjoyment of the property under the 1st defendant. The Trial Court's decree for redemption passed in the year 1101 was confirmed by the High Court in the year 1105. When the decree holder attempted to get possession of the property by executing the decree, the 9th defendant and others raised a contention that the 34 cents of property covered by Survey No. 1246 was Poramboke land at the absolute disposal of the Government and that it was assigned in favour of the Cherupalli Swaroopam in the year 1095 and that this property was not included in the mortgage relied on by the decree holder. That dispute was finally set at rest by the decision of the Cochin High Court in S.A. 46 of 1122. That decision is to the effect that property is dispute was also included in the mortgage which formed the basis of the decree in O.S. 300 of 1101 and that the decree holder was entitled to recover possession of the same in execution of the decree. It was on the strength of that decision that he was put in possession of the property through court on 3.10.1123. In the meantime, the 9th defendant in the case executed a lease deed in respect of the sale property in the year 1109 in favour of the Cherupalli Swaroopam. On the strength of that lease deed, the Swaroopam sued the lessee for arrears of pattom and obtained the decree in O.S. 40 of 1122 of the Ernakulam Munsiff's Court. In execution of that decree, the lease hold right of the defendant was sold in court auction and it was purchased on one Varkkey Augustine, who obtained possession of the property on 2.2.1123. The petitioner in

(3.) The two points urged on behalf of the revision petitioner are that the petitioner in M.P. 2398 is only a representative in interest of the 9th defendant in O.S. 300 of 1101 and that all the proceedings under which he claims to have obtained possession of the property are vitiated by the rule of lis pendens. The case of the petitioner in M.P. 2398 is that on the date of his dispossession by the decree holder in O.S. 300 of 1101, he was in possession of the property on his own account and not on account of or under the judgment debtors in that case. It is on the strength of such a plea that he has complained about his dispossession and has applied under O. 21, R. 97 of the Cochin Civil Procedure Code for restoring his possession of the property. If the executing court is satisfied that he was in possession of the property on his own account or on account of some person other than the judgment debtors, it is bound to restore his possession of the property under O. 21, R. 98. Thus, the essential conditions to be established by the petitioner in M.P. 2398 are that he was in possession of the property in his own account and not on account of any of the judgment debtors in O.S. 300 of 1101 and that his claim for possession of the property is supported by good faith. As already pointed out, it is the lease hold right which the 9th defendant in O.S. 300 of 1101 is stated to have acquired in the year 1109 and which was sold in court auction as per the decree in O.S. 40 of 1122 that is relied on by the petitioner in M.P. 2398 as the basis of his claim for possession of the property. Long before the 9th defendant assumed the position as a lessee, of the property in the year 1109, the present revision petitioner had instituted O.S. 300 of 1101 with the 9th defendant also on the party array, for recovery of possession of the very same property, on redemption of the mortgage which the 1st defendant, who was the father of the 9th defendant, had executed in favour of the predecessor-in-interest of the plaintiff. The contention put forward in that case that 9th defendant's possession of the property was under the defendant mortgagee, was upheld by the court and a decree for redemption of the property was passed. The 9th defendant is undoubtedly concluded by that decree. His attempt in resisting delivery of the property in favour of the decree holder also failed when it was decided in S.A. 46 of 1122 that this property was also included in the mortgage and that the decree holder was entitled to recover possession of the same. It was long after the decree for redemption had become final that the 9th defendant executed the lease deed in favour of Cherupalli Swaroopam in respect of the same property in the year 1109. At that time he was bound in law as the judgment debtor in O.S. 300 of 1101, to surrender possession of the property to the decree holder. By executing the lease deed in favour of the Cherupalli Swaroopam, the 9th defendant was virtually transferring possession of the property to the Swaroopam and accepting it back as a lessee under the Swaroopam. The circumstances under which such a transaction was entered into early indicate that it was devoid of all good faith and that it was only an attempt to defeat the decree holder in O.S. 300 of 1101. The possession with the Cherupalli Swaroopam claimed on the strength of the lease deed executed by the 9th defendant, could only be the possession obtained from the Judgment debtor in O.S. 300 of 1101. By executing the lease deed, the legal character of the 9th defendant's position as the judgment debtor in that case could not be altered. His lease hold right in reality and substance was nothing other than his right to the possession of the property as the judgment debtor. It was the right to such possession that was sold in court auction in O.S. 40 of 1122 and purchased by Varkkey Augustine and subsequently transferred to the petitioner in M.P. 2398. Thus the possession claimed by him is essentially the possession of the 9th defendant judgment debtor in O.S 300 of 1101. It follows, therefore, that he was really the representative in interest of the 9th defendant and was in possession of the property not on his own account, but only on account of the 9th defendant when the decree holder in O.S. 300 of 1101 recovered possession of the property from him on 3.10.1123 and that he is not entitled to claim for its restoration of his possession under O. 21, R. 97.