KOMALAM Vs. RADHAKRISHNAN NAIR

JUDGEMENT

(1.) The petitioner -- wife of the third respondent is the applicant in E.A.No. 1357 of 2004 in E.P.No. 420 of 2004 in O.S.No. 426 of 1986 on the file of the I Additional Munsiff's Court, Thiruvananthapuram. The said suit was filed by the third respondent herein for declaration of title and recovery of possession of the plaint schedule property. The suit was decreed in favour of the plaintiff.

(2.) The petitioner filed O.S.No. 94 of 1986 before the same Court claiming that the plaint schedule property mentioned in O.S.No. 426 of 1986 was purchased by the third respondent with her funds and hence she is entitled for possession of the plaint schedule property. The Trial Court allowed the suit filed by the third respondent and dismissed the suit filed by the petitioner. Against the judgment and decree passed in O.S.No. 94 of 1986, the petitioner filed A.S. No. 46 of 1999 which also ended in dismissal. The petitioner then filed R.S.A. No. 1192 of 2004 and this Court dismissed the Second Appeal as per Ext.P3 judgment. The present application, E.A.No. 1357 of 2004 in E.P.No. 420 of 2004 in O.S.No. 426 of 1986 is filed by the petitioner objecting execution of the decree on the ground that she had filed O.S.No. 139 of 1997 before the Sub Court, Thiruvananthapuram for arrears of maintenance and future maintenance and the Court passed an order of attachment of the property involved in O.S.No. 426 of 1986 against the third respondent.

(3.) The order of attachment is still in force and in the meanwhile the petitioner filed O.S.No. 254 of 1993 before the Family Court, Thiruvananthapuram for enhancement of the maintenance granted by the Sub Court, Thiruvananthapuram in O.S.No. 139 of 1977. The said suit is still pending. Now, the claim of the petitioner before the execution Court is that since the suit, O.S.No. 139 of 1977, filed by her for maintenance was allowed and an order of attachment was passed, execution of the decree in O.S.No. 426 of 1986 has to be stayed as per the provisions contained in Order XXI Rule 29 of the Code of Civil Procedure.