RAGHAVA PANICKER Vs. KESAVAN

JUDGEMENT

(1.) This appeal arises from an order in execution of the decree in O.S. No. 49 of 1098 of the District Court of Alleppy. The additional 2nd plaintiff, legal representative of the original plaintiff is the appellant.

(2.) The decree in this case was one for recovery of possession of several items of immovable property and other reliefs. The decree of the Trial Court and appellate court were on 2-7-1110 and 10-3-1112 respectively. On 15-4-1124 the appellant and four others filed E.P. No. 32 stating that the original decree holder was away from the locality and that they be allowed to execute the decree. Pursuant to this application execution was allowed and delivery of possession of property was given to them. The 20th defendant who was in possession of part of the property applied for re-delivery alleging that the court had no jurisdiction to allow execution on the application of persons who were not parties to the decree and that execution was barred by limitation on the date of the E.P. The appellant filed objections which were overruled. The court below allowed the application for re-delivery; hence this appeal.

(3.) The ground on which redelivery was ordered was that the execution court acted without jurisdiction in allowing execution on the application of the appellant and others It was urged on behalf of the appellant that the order allowing execution having been passed with notice to the 20th defendant, the latter was concluded by such orders. This argument could have been accepted bad the defect been one of erroneous exercise of jurisdiction. This is a case in which there was absence of jurisdiction and in such a case the order on the E.P., must also be held as passed without jurisdiction. R.10 of