PADMAKSHY OMANA Vs. R.GOPINATHA MENON

JUDGEMENT

(1.) THE order on E.A. No. 838 of 2003 in E.P. No. 19 of 1994 in O.S. No. 422 of 1980 of the Munsiff's Court, Cherthala, confirmed by the Sub Court, Cherthala in A.S. No. 148 of 2004 is under challenge at the instance of the appellant/obstructor who moved the Executing Court under Rule 97 of Order XXI of the Code of Civil Procedure (for short 'the Code').

(2.) THE appellant is the daughter of the first judgment debtor and the sister of judgment debtors 2 to 4 against whom the trial court passed a decree for recovery of possession negativing various contentions they raised including a plea of tenancy and kudikidappu as revealed by Ext.B2, judgment. In the execution of that decree the appellant came with E.A. No. 838 of 2003 contending, inter alia that she is the tenant of the suit property and alternatively, that she is entitled to purchase kudikidappu in the house and the adjoining property. Those contentions were negatived by the executing court and confirmed by the first appellate court. Hence the second appeal.

(3.) THE learned counsel who took notice for the first respondent has contended that none of the objections raised by the appellant would stand. According to the learned counsel, it is much after delivery of possession of the property pursuant to the decree in O.S. No. 411 of 1953 that the defendants in the suit trespassed into the suit property which necessitated the first respondent filing O.S. No. 411 of 1953. It is contended that the appellant who is the daughter of the first judgment debtor (second respondent herein) cannot make any independent claim of possession so as to sustain a claim of deemed tenancy or kudikidappu, the second respondent having already raised the plea and lost it as revealed by Ext.B2, judgment.