ALPHONE THOMAS Vs. ALEY

JUDGEMENT

(1.) The revision is directed against the order dated 24.1.2009 in E.P.No.22/2008 in O.S.No.193/1986 on the file of the Munsiff Court, Pala. The 7th judgment debtor in the execution petition who was brought in by way of substitution as one among the legal representatives along with other legal representatives of the 1st judgment debtor on his death during the pendency of the execution proceedings had moved an application under Order XXI Rule 97 of CPC setting up a case that he has prescribed title over the decree property by adverse possession, and so much so, he has an independent title, right and possession over the property and it has to be adjudicated by the court. The decree sought to be executed was one passed in a suit for recovery of possession, in which, the 1st judgment debtor was the sole defendant. Decree passed by the trial court was confirmed in the appeal preferred by the defendant. Claim raised by the 7th judgment debtor setting up an independent title, right and possession over the property covered by the decree was resisted by the decree holder contending that the judgment debtor, under law cannot set up a claim when he has been brought in as a legal representative of the judgment debtor. A claim under Order XXI Rule 97 of CPC is permissible only where a right is claimed independently otherwise than by the judgment debtor, was the case canvassed by the decree holder to impeach the claim of the 7th judgment debtor. The learned Munsiff, after considering the claim petition with reference to the objections raised by the decree holder and hearing the counsel on both sides, found the claim canvassed by the 7th judgment debtor was not entertainable with no adjudication warranted in the facts and circumstances of the case over such claim; and, forming such conclusion, the petition moved by the 7th judgment debtor was dismissed. That order is impugned in the revision.

(2.) I heard the learned counsel on both sides. The learned counsel for the 7th judgment debtor contended that he has a right to file a claim petition when he has an independent title by virtue of the adverse possession over the property, and so much so, the learned Munsiff was not correct in holding that his claim is not entertainable. Another grievance canvassed by the counsel is that there was no adjudication of the claim and he was denied of an opportunity of establishing his independent title, right and possession over the property as contemplated under Order XXI Rule 101 of CPC. According to the learned counsel for the petitioner, he is also entitled to the benefits insulated under the Compensation for Tenant Improvement Act, 1958 and that was also denied by the dismissal of his claim petition. Reliance is placed on Noorduddin v. Dr. K.L. Anand, 1995 1 SCC 242 to contend that executing court has necessarily to go into a claim set up and a finding has to be arrived on the claim after affording opportunity to the claimant to substantiate his case. On the other hand, the learned counsel for the decree holder submitted that in the appeal preferred against the decree by the father of the present revision petitioner (7th judgment debtor), he had moved application for his impleadment setting forth a case that his parents had transferred the decree schedule property in his favour and for an effective adjudication of the appeal, his presence as a party was necessary. That application was dismissed by the appellate court. After the death of his father, when he was brought in as one among his legal representatives, the learned counsel submits a case different from that was canvassed before the appellate court is presented by filing a claim petition contending that he has prescribed title over the property by adverse possession. It is further submitted that as the 7th judgment debtor had been brought in the execution proceedings as a legal representative of the deceased 1st judgment debtor, it was a case of substitution only, and he can represent whatever right, title and or interest, which was available of that judgment debtor and that alone, and not competent to set up any independent right to obstruct the execution of the decree. The learned counsel for the decree holder relied on Ajith Kumar M.R. and others v. Vasanthi Devi and Others,2008 4 KHC 818 to contend that the 7th judgment debtor is bound by the decree passed against his predecessor, his father, the 1st judgment debtor, and it is not open to him to set up in the execution proceedings an independent title, right or possession over the decree schedule property.

(3.) Needless to point out that the 7th judgment debtor has been brought in by way of substitution on the death of the 1st judgment debtor, his father, along with the other legal representatives of that judgment debtor. To what extent a legal representative of a judgment debtor brought in by way of substitution can set up an independent right resisting the decree is the question arising for consideration. In that context, the definition of the legal representative under Section 2 (11) of CPC emerges for consideration. Section 2 (11) reads thus: