THAYYIL GOPALAN Vs. THAYYIL MADHAVI

JUDGEMENT

(1.) An application in E.A. No.225 of 2005 under Order 21, Rule 97 of the Code of Civil Procedure submitted by four siblings of defendant Nos.1 to 3 resisting the execution of decree passed in O.S.No.10 of 2003 by the Munsiff's Court, Perambra was dismissed by the Execution Court by its order dated 24.11.2011. It was taken up in appeal in A.S.No.36 of 2011 wherein the order of the execution court was confirmed. Aggrieved by the said order/decree, the claim petitioners came up with this Execution Second Appeal.

(2.) The suit is one for fixation of boundary and for permanent prohibitory injunction. It was decreed by fixing the boundary separating the property of plaintiffs from that of defendant Nos.1 to 3 on the northern and western sides. The northern and western property originally belonged to one deceased Kanaran, the father of defendant Nos.1 to 3 and the claim petitioners. They obtained right and title over the property by devolution on the death of their father. The property was not partitioned by any registered deed of partition. After the passing of the decree fixing the northern and western boundaries it was put in execution. The execution of the decree was objected by the claim petitioners mainly on the reason that they are not parties to the decree and hence not binding on them.

(3.) The application was resisted by the decree holders on the ground that the estate left out by Kanaran, the father of defendant Nos.1 to 3 and the claim petitioners, represented in the suit by some of his legal heirs - defendant Nos.1 to 3 - and hence the decree passed is binding on the estate of deceased Kanaran and his legal heirs.