MARYKUTTY JOSEPH Vs. OUSEPH ISSAC, NEYYARAPPALLIL

JUDGEMENT

(1.) THE revision petition arises from an order of the Additional Sub Judge, Alappuzha, in execution, rejecting an application for appointment of Commissioner. Originally, after remand ordered by this Court in E.S.A.No.3/1990, the revision petitioner herein had filed an application E.A.No.487/2000 for appointment of Commissioner to report on the improvements effected by her in the property. That was initially allowed, however the decree holders/respondents filed an application for review of that order. E.A.No.492/2000 filed by the decree holder for review of the order in E.A.No.487/2000 was allowed by the lower court by order dated 31-10-2000. As a consequence, the application for appointment of Commissioner was rejected by the impugned order in the revision on the same day. The revision petitioner filed an appeal from the order in E.A.No.492/2000 before the District Court, Alappuzha. The civil revision petition as noticed above was filed against the dismissal of the application for appointment of a Commissioner. This Court called for the appeal from the District Court and numbered it as C.M.A.No.190/2002. Both the revision petition and the appeal are heard together.

(2.) THE brief facts necessary for the disposal of the appeal is that one Mariya mortgaged certain items of property to Souriyar who was put in possession of the said lands. Mariya later sold her rights to Ouseph, who thus obtained the right of redemption. Souriyar's daughter filed O.S.No.33/1112 M.E. for recovery of 'Streedhanam' against her father and obtained a decree dated 27.4.1117 ME. The decree was assigned to Mathai Chacko and Aboobacker Ahmed and they assigned it to the revision petitioner, Marykutty Joseph. Marykutty Joseph initiated execution proceedings in O.S.No.33/1112 M.E. and one item of property which was the subject of mortgage was delivered to her. Marykutty Joseph hence was in possession of this property.

(3.) THAT order, allowing the removal of obstruction, was again the subject matter of second appeal before this court in E.S.A.No.3/1990. This Court dealt with each and every contention raised by the obstructor namely, Marykutty Joseph and found that the legal heirs of Ouseph having obtained a decree and deposited the amounts towards redemption was entitled to delivery of the properties and the obstruction caused by Marykutty Joseph was found to be illegal. However, this Court considering the claim of the obstructor found that her predecessor-in-interest viz: Souriyar was granted a possessory mortgage and hence the possession of the obstructor was perfectly legal and valid and hence she was entitled to compensation for value of the improvements effected in the property. Hence for that limited purpose it was remanded to the execution court. It was on remand that what was detailed in the earlier part of this judgment transpired.