SAVIOUR Vs. E V MATHAI

JUDGEMENT

(1.) The applicant in E.A.No.606/2004 in E.A.440/2004 in E.P.No.58/2003 in O.S.No.20/1998 is the appellant herein who challenges the order dated 16-8-2006 of the Principal Sub court, Kochi by which the application filed by the appellant/petitioner under Order XXI Rule 101 read with Section 151 of C.P.C was dismissed with costs holding that O.S.No.134/2001 was a suit collusively filed by him against his brother who is the 2nd respondent in the above application and further found that he has no title or interest over the petition schedule property under the sale conducted in E.P.55/2002 in O.S.134/2001. It is the above order and finding are impugned in this appeal.

(2.) The averments and claim of the appellant/petitioner are as follows:

(3.) It is the further case of the appellant that only on 6-11-2004 he came to know about the execution application No.440/2004 in E.P.No.58/2003 in O.S.20/98 when Ist respondent filed application fro delivery of the petition schedule property. Immediately thereafter, he approached the court below by filing E.A.606/2004 under Order XXI Rule 101 read with section 151 of CPC with a prayer to allow the claim petition contending that he is in absolute ownership and possession over the petition schedule property for the reasons stated in the affidavit accompanied thereto. He placed reliance on the sale certificate as per the order in E.P.55/2002 in O.S.134/2004 with respect to the whole property including House No.11/855 A and aforesaid land property situated in Survey No.1077/01 of Puthuvypu village.