SUMA RAJAN Vs. SHEELA

JUDGEMENT

(1.) THE decree holder in E.P.11 of 2002 on the file of Munsiff Court, Idukki, who is the respondent in E.A.32 of 2002 filed by the respondent claimant under Rule 58 of Order XXI of Code of Civil Procedure is the appellant. Appellant instituted O.S.27 of 1996 for realisation of Rs.4000/- with 18% interest and return of gold ornaments worth Rs.10,000/- from the first judgment debtor, her husband and second respondent, his mother. THE suit was decreed on 17.10.1996. THE judgment debtors were directed to pay Rs.4000/- with interest at the rate of 18% per annum and also 20 gms of gold or its value of Rs.10,000/-. E.P.11 of 2002 was filed for execution of the decree. In the execution petition, the movables from house No.248 of Mariyapuram panchayat were attached and brought before the court. Respondent, who is none other than the sister of first judgment debtor and the daughter of the second judgment debtor, filed E.P.32 of 2002 to release the articles by raising the attachment contending that those movables were attached from her residential house and the movables belong to her and the judgment debtors have no right over it and therefore appellant has no right to attach them or proceed against those movables.

(2.) LEARNED Munsiff on the evidence dismissed the application. Respondent challenged the order before District Court, Thodupuzha in A.S.17 of 2003. LEARNED District Judge, on reappreciation of evidence, finding that respondent has only a prima facie burden to prove the ownership and that burden has been discharged, held that movables belonged to the respondent and therefore they cannot be proceeded against for realisation of the amount due from the judgment debtors. The appeal and the claim petitions were allowed. Respondent challenged the judgment before this court in E.S.A.6 of 2005. This court set aside the judgment of the learned District Judge and remanded the appeal to dispose afresh on merits, holding that first appellate court erroneously cast the burden of proof on the appellant. LEARNED Additional District Judge thereafter on reappreciation of the evidence, once again confirmed the earlier findings and allowed the appeal. It is challenged in the second appeal.

(3.) LEARNED counsel appearing for appellant pointed out that when a claim petition is to be treated as a plaint and is to be tried as a suit, the burden is on the respondent to establish her right over the attached movable properties and first appellate court wrongly cast the burden on the appellant and on the evidence, it should have been found that all the movables belong to the judgment debtors and therefore the attached movables should not have been released. LEARNED counsel further pointed out that though learned Additional District Judge found that movables were attached from the residential house of the respondent and so it is for the appellant to establish that those movables belong to the judgment debtor, entire evidence was appreciated elaborately and found that the movables did not belong to the judgment debtors but to the respondent and therefore there is no reason to interfere with the findings of the first appellate court.