DEVAKI AMMA Vs. DIVAKARAN

JUDGEMENT

(1.) The appellants are the respondents in Review Petition No.1/2013 in C.M.A.No.6/2010 on the files of the Third Additional District Court, Ernakulam. As per the impugned order dtd. 4/4/2015, the District Court allowed the Review Petition setting aside its Order dtd. 27/2/2013 in C.M.A.No.6/2010 in which it is held that the C.M.A. is not maintainable and further directed to close the C.M.A and re-register the C.M.A as Regular Appeal under Sec. 96 of the Code of Civil Procedure.

(2.) The short facts necessary for the disposal of this Appeal alone are stated: O.S.No.562/1957 was filed for the cancellation of a document and recovery of possession of the plaint schedule property. The said suit was decreed. The defendants filed an Appeal before the Appellate Court as A.S.No.170/1967. During the pendency of the Appeal, the defendants 2 and 3, who were the appellants therein, died and their legal heirs were impleaded in the Appeal. The Appeal was dismissed confirming the judgment and decree of the Trial Court. The plaintiffs/decree holders put the decree in execution by filing E.P.No.367/1981. Two of the legal heirs of the defendants 2 and 3, who were the parties in A.S.No.170/1967, were not made parties in the E.P. One of such legal heirs got himself impleaded as additional respondent in the E.P. The other legal heir, namely, M.K. Divakaran, filed E.A.No.579/2009 seeking permission to file an Objection to the E.P. E.A.No.579/2009 was allowed. The property was ordered to be delivered on 27/10/2009. Then he obstructed delivery and filed another E.A.No.591/2009 under Order 21 Rule 97 CPC. He raised two contentions in E.A.No.591/2009. First was that the decree is sought to be executed without impleading him in the Execution Petition. Second is that he is having an independent right over the plaint schedule property. The Execution Court dismissed E.A.No.591/2009 as per the order dtd. 3/11/2009.

(3.) I heard the learned counsel for the appellants, Sri. K.V. Jayachandran, the learned counsel for the respondents 2 to 4, Smt. P.P. Stella and the learned counsel for the 5 th respondent, Smt. Savitha G.