ITTIYACHAN Vs. M I TOMY

JUDGEMENT

(1.) The appellant is the petitioner in E. A. 455 of 1999 in E.P. 319 of 1996 in O. S. 385 of 1992 on the file of the Subordinate Judge's Court of North Paravur. That application was filed by him invoking O.21 R.97, O.47 R.1 and S.151 of the Code of Civil Procedure. The appellant, the petitioner in E. A. 455 of 1999, is the father of the judgment debtor in O. S. 385 of 1992. The decree holder in that suit was impleaded as respondent No. 1 and the judgment debtor was impleaded as respondent No. 2 in E. A. 455 of 1999. That application was opposed by the decree holder. The Court below, after an enquiry, dismissed that application. Hence, this appeal is filed by the appellant invoking O.21 R.103 of the Code of Civil Procedure read with O.41 R.1 thereof.

(2.) The appellant, hereinafter referred to as "the claimant", along with his four sons and three daughters are the heirs of his wife Mariya. Mariya died. The properties inherited from Mariya and an item of property purchased jointly by Mariya and the claimant, were the subject matter of a settlement or partition, marked Ext. A4 in the proceeding. Under that settlement or partition dated 15.10.1988, the daughters of Mariya took their shares in terms of money. Item No. 1 therein (we are concerned with that item here) was divided into four and each of the sons took a portion extending from east to west and one to the south of the other. It was provided in that partition or settlement deed that the claimant would have a life interest over item No. 2 to that deed. On the terms of Ext. A4, the division of item No. 1 was outright division. But, it was provided therein that if during the lifetime of the father, the claimant, the allottees sons, wanted to dispose of their shares, they must do so with the consent of the father and with the junction of the father in the deed of sale. Acting against this particular term in the settlement deed, the judgment debtor entered into an agreement for sale with the decree holder to sell the 21 cents obtained by him under Ext. A4. He did not perform his part of the contract and this led to the decree holder filing the suit O. S. 385 of 1992 for specific performance of the agreement for sale. The suit was filed on 15.7.1992. The judgment debtor appeared on 17.10.1992. He was thereafter set ex parte and the suit was decreed. The ex parte decree against him was set aside on his application. Thereafter he filed a written statement. Issues were struck. The suit was included in the list for trial to 11.8.1994. The defendant did not appear. He was again set ex parte and the suit was decreed. The judgment debtor filed I.A. 4620 of 1994 to set aside the ex parte decree. After taking evidence, that application was ultimately dismissed on 28.8.1995. On 13.6.1996, the Execution Petition was filed by the decree holder. The judgment debtor appeared on 10.3.1997. Ultimately on 9.6.1998, the balance purchase price was deposited. A draft sale deed was produced thereafter. On 1.9.1998 the Court approved the draft sale deed. On 21.5.1999, the Court directed that the property be identified. The brothers of the judgment debtor obstructed. The Surveyor, who had been directed to identify the property, sought police help from Court. That was granted. On 28.5.1999, the Surveyor completed his work and on 15.6.1999 he filed a report and plan. Thereafter the Court executed the sale deed on 13.8.1999. The Court ordered delivery and the property was delivered over on 30.8.1999.

(3.) In view of the fact that delivery had been effected by the Court as evidenced by the report of the Amin, the claimant ought to have filed an application for redelivery under O.21 R.99 of the Code of Civil Procedure. But, what he did was to make an application under O.21 R.97 of the Code of Civil Procedure as if he were offering obstruction to the delivery. He also invoked O.47 R.1 of the Code of Civil Procedure seeking a review of the order, directing delivery. Whatever it be, in the circumstances of the case, it does not appear to be necessary to dispose of the claim of the claimant on the ground that he has not invoked the proper provision or that he has not sought the proper remedy. Learned counsel for the claimant submitted that in the light of the evidence of the Amin, examined as PW 2, it could be held that the property was not actually delivered over. But, on going through the evidence of PW 2, the Amin, we are satisfied that the presumption, arising out of the record of delivery, is not in any manner rebutted. But, on the other hand, the factum of delivery is strengthened by the evidence of PW 2. We may notice here that the Court, which executed the decree for specific performance, had taken care to identify the various portions taken by the sons from out of item No. 1 of that document and it was only thereafter that the sale deed itself was executed and the delivery effected. Therefore, the challenge to the delivery cannot be upheld.