V. A. BABU Vs. M. V. AYYAPPANKUTTY

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order in EP No. 238 of 1998, a petition for execution of the decree in LAR No. 60 of 1988 on the files of the Sub Court, Irinjalakuda. The EP was filed originally by Dr. V. A. Babu, husband of the 1st petitioner and father of petitioners 2 and 3. The petitioners were impleaded as additional petitioners in the EP upon the demise of Dr. Babu, who died pending the EP. The impugned order is in fact a common order in the EP and an EA filed by the 1st respondent herein, Mr. Ayyappankutty who got himself impleaded as 3rd respondent in the EP, claiming that he is the holder of the decree and that the entire rights of Dr. Babu had been assigned to him by Dr. Babu himself. In fact, in the execution petition, another person by name Joy Kuriakose also got himself impleaded as additional 4th respondent and being aggrieved by the common order, he filed two separate CRPs as CRP Nos. 836 and 874 of 2002, impugning the order in the EP and the EA separately. As agreed to by both sides, I closed those CRPs, observing that the grounds raised therein will be considered in this CRP. The facts which obtain in this case are unusual and will have to be stated at length. For sake of convenience, I will be referring to the parties by their names.

(2.) The land acquisition reference case was initiated by Dr. Babu under S.18 of the Land Acquisition Act, for determination of the compensation payable for 29.04 acres of land situated in Chalakudy Town belonging to him and acquired for the purpose of establishment of the Head Post Office and Staff Quarters at Chalakudy. On receiving notice from the land acquisition reference Court, Dr. Babu entered appearance, engaged a counsel and reiterated his claims before the Land Acquisition Officer. Upon the reference case being special listed for trial, Dr. Babu got himself examined on 21/06/1993 and thereafter by 29/06/1993, two more witness were examined on his side and through these three witnesses, documents Exts. A1 to A3 were proved for substantiating his claim for enhanced compensation. On 29/06/1993, evidence on the side of Dr. Babu was closed and on the same day, Government's witnesses were also examined and the entire evidence in the reference case was closed. The LAR Case was posted thereafter on various dates till 16/09/1993. On that day, Mr. Ayyappankutty filed interlocutory application claiming himself to be the power of attorney holder for Dr. Babu and seeking reopening of evidence in the case and admittance of certified copies of four more sale documents in evidence. Even though there was no formal application under Rule 22 of the Civil Rules of Practice, Sri. Ayyappankutty was allowed to come on record as the power of attorney holder for Dr. Babu. One additional witness (PW 4) was also examined. The additional documents were marked as Exts. A4 to A7 and ultimately the reference case was allowed redetermining the land value as Rs.30,000/- per cent as against the original land value of Rs.7563/-. In the decree prepared by the Court, the decree holder Dr. Babu stood represented by his power of attorney holder Mr. Ayyappankutty. The State preferred an appeal to this Court as LAA No. 718 of 1994. Pursuant to interim orders passed in that appeal, a sum of Rs.28,00,000/- (Rs.Twenty eight lakhs only) was deposited towards an estimated 50% of the total decree debt. The above amount was withdrawn from the execution Court by Mr. Ayyappankutty as power holder of Dr. Babu. According to the petitioners, Dr. Babu was not aware as to what was the exact amount withdrawn by Mr. Ayyappankutty from the Court and what was paid to Dr. Babu by Mr. Ayyappankutty was only Rs.9,00,000/- (Rs. Nine lakhs only). The appeal filed by the Government against the decree was dismissed by the Division Bench of this Court which confirmed the judgment and decree of the reference Court. The petitioners submit that by this time Dr. Babu came to know about the drawal of Rs.28,00,000/- by Mr. Ayyappankutty and disputes arose between Dr. Babu and Mr. Ayyappankutty over such drawal and Dr. Babu revoked the power of attorney under intimation to Mr. Ayyappankutty. Dr. Babu filed EP No. 238 of 1998 for recovery of the balance decree debt. He also filed EA No. 335 of 1998 seeking an order restraining Mr. Ayyappankutty from withdrawing the decree amount as if he is the decree holder's power of attorney holder. On receiving notice from the execution Court regarding the EP and the EA filed by Dr. Babu, Mr. Ayyappankutty filed EA No. 605 of 1998 praying that the entire decree debt including the balance amount of Rs.23,10,008/- be disbursed to him alone. It was in the meanwhile that Mr. Joy Kuriakose, the petitioner in CRP Nos. 836 and 874 of 2002 got himself impleaded in the execution petition filed by Dr. Babu claiming that Mr. Ayyappankutty had executed an irrevocable power of attorney in his favour and that he is an assignee of the entirety of Ayyappankutty's rights over the decree. The execution Court enquired into the matter. The evidence consisted of documents Exts. B1 to B6 and witnesses RW 1 and RW 2 on the side of Mr. Ayyappankutty, apart from Exts. X1 to X4 produced by RW 2. RW 1 was Mr. Ayyappankutty himself and RW 2 was Adv. Sri. E. T. Thomas who was the advocate for the claimant in the LAR case before and after the execution of the power of attorney in favour of Mr. Ayyappankutty. No evidence at all was adduced by the petitioners.

(3.) On evaluating the evidence, the execution Court found that Ext. B2 agreement executed by late Dr. Babu in favour of Mr. Ayyappankutty amounted to an equitable assignment of Dr. Babu's right to execute the decree and accordingly held that neither Dr. Babu nor his legal heirs are entitled to execute the decree. EP No. 238 of 1998 was dismissed. The claims of Mr. Joy Kuriakose were rejected on the ground of total dearth of evidence. The contention advanced by the petitioners that EA No. 605 of 1998 filed by Sri. Ayyappankutty had abated due to the reason of deliberate non impleadment of them was ignored by the Court which allowed that EA and directed release of the entire amount under deposit to Sri. Ayyappankutty.