JAYAN KUTTICHAKKU Vs. SIMON S/O. MATHEW

JUDGEMENT

(1.) This appeal and Original Petition arise from the execution proceedings in O.S.No.1156 of 1991 on the file of Munsiff, Irinjalakuda. One Augusthy had in his ownership 20.265 cents. The adjoining 14.500 cents belonged to his wife, Kochamma. Augusthy was a judgment debtor in O.S.No.521 of 1991 in which a decree for realisation of certain amount was passed in favour of the plaintiff Kshemodayam Kuries. In execution of the decree his 20.265 cents was sold in 1999. The decree holder Kshemodayam Kuries was the purchaser. The sale was confirmed on 9.11.1999 and the property was delivered subsequently. Later, a grandson of Augusthy and Kochamma (herein after called the appellant-obstructer) bought the property from Kshemodayam Kuries.

(2.) In O.S.No.1156 of 1991 on the file of Munsiff, Irinjalakuda Navodaya Kuries and Loans (P) Ltd. obtained a money decree against Augusthy, his wife, Kochamma, and their son Kochu Pauly , the last of whom is the petitioner in OP(c) No.3081 of 2011 and third respondent in the appeal. In execution of the decree, in E.P.No.1406 of 1994, Kochamma's 14.500 cents was sold. The purchaser was the decree holder Navodaya Kuries and Loans (P) Ltd., which is the second respondent in the appeal and which is herein after referred to as the decree holder. The sale was confirmed on 22.2.1996. Ext A1 sale certificate was issued on 12.4.1996. The decree holder filed E.A.No.132 of 1997 for delivery of the property. During the pendency of that application the decree holder sold the property to the judgment debtor Kochamma by Ext A2 sale deed dated 11.3.1997. The very next day by Ext A3 sale deed Kochamma sold the property to the first respondent in the appeal.

(3.) The first respondent filed E.A.No.589 of 1997 to get himself impleaded in E.A.No.132 of 1997 filed by the decree holder for delivery of the property. Judgment debtor Kochamma died. Some of her legal representatives including judgment debtor No.3 Kochu Pauly, who is the petitioner in the present O.P and third respondent in the appeal, filed E.A.No.201 of 1999 to set aside the ex parte order passed in the Execution Petition. It was dismissed. C.R.P.No.394 of 2003 filed by them challenging the order was dismissed by this court. The first respondent filed E.A.No.981 of 2003 for breaking open the lock of the gate of the property sought to be delivered and for getting the property identified on the basis of the boundaries mentioned in the application and for effecting delivery. It was alleged that the third respondent Kochu Pauly destroyed the boundaries separating the property sought to be delivered from the adjoining property. The executing court treated it as an application filed under Order 21 Rule 95 Code of Civil Procedure. The appellant-obstructer filed a 'counter affidavit' though he was not a party to the application. He filed Original Petition 34961 of 2004 before this court challenging the proceedings in the suit. The O.P. was dismissed. The first respondent filed E.A.No.1538 of 2004 to appoint a commissioner to identify the property sought to be delivered and for its delivery. In that application the appellant- obstructer is shown as the 10th respondent. In the affidavit filed in support of that application it is stated that claiming right over a certain 'portion in a corner' of the property, he obstructed delivery of the property. But no application was filed under Order 21 Rule 97 Code of Civil Procedure either by the appellant-obstructer or the first respondent. Realising that there are some mistakes in the description of the property the first respondent filed E.A.No.835 of 2010 for amendment of the description of the property given in the attachment schedule, the proclamation schedule and the sale certificate. It was dismissed as not pressed.