Kerala High Court
Kuttiyil Thoduvayil Karthiayani Amma vs Theriyil Padmanabhan Nair on 7 September, 1961
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938
OP(C).No. 1535 of 2016 (O)
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ORDER IN EP.NO.176/2016 IN F.D.I.A.NO.579/1962 IN OS.NO.6/1953 OF
SUB COURT, KOZHIKODE
....
PETITIONER(S)/PETITIONERS IN EP:
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1. KUTTIYIL THODUVAYIL KARTHIAYANI AMMA,
D/O. CHITRUTHEYI AMMA, SWASTHAM,
AGED 80 YEARS, NADUVALLUR AMSOM DESOM,
P.O.KAKKUR, KOZHIKODE TALUK, KOZHIKODE-673 613.
2. KUTTIYIL THODUVAYIL GOPALANKUTTY NAIR,
S/O. CHITRUTHEYI AMMA, AGRICULTURE,
AGED 78 YEARS, NADUVALLUR AMSOM DESOM,
P.O.KAKKUR, KOZHIKODE TALUK, KOZHIKODE-673 613.
3. THODUVAYIL SUVRATHAN,
S/O. KARTHIAYANI AMMA, ELECTRICIAN,
AGED 47 YEARS, NADUVALLUR AMSOM DESOM,
P.O.KAKKUR, KOZHIKODE TALUK, KOZHIKODE-673 613.
4. THODUVAYIL INDRANATHAN,
S/O. KARTHIAYANI AMMA, MECHANIC,
AGED 45 YEARS, NADUVALLUR AMSOM DESOM,
P.O.KAKKUR, KOZHIKODE TALUK, KOZHIKODE-673 613.
5. THODUVAYIL VRINDA,
D/O. KARTHIAYANI AMMA, SWASTHAM,
AGED 40 YEARS, NADUVALLUR AMSOM DESOM,
P.O.KAKKUR, KOZHIKODE TALUK, KOZHIKODE-673 613.
6. SREYAS (MINOR),
S/O.VRINDA, AGED 12 YEARS, REPRESENTED BY NEXT FRIEND,
GUARDIAN, MOTHER, VRINDA, AGED 40 YEARS,
NADUVALLUR AMSOM DESOM, P.O.KAKKUR,
KOZHIKODE TALUK, KOZHIKODE-673 613.
BY ADV. SRI.K.P.BALASUBRAMANYAN
RESPONDENT(S)/RESPONDENTS IN EP:
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1. THERIYIL PADMANABHAN NAIR,
S/O. MADHAVAN NAIR, AGED ABOUT 58 YEARS,
AGRICULTURE, THERIYIL HOUSE,
KOZHIKODE TALUK, NADUVALLUR AMSOM, DESOM,
P.O.KAKKUR, KOZHIKODE-673 613.
2. KULAKKATT MUNDAYIL VIJAYACHANDRAN
S/O. NARAYANAN NAIR, AGED ABOUT 65 YEARS,
'SREYAS', PATHUKUDI PARAMBATH HOUSE,
KOZHIKODE TALUK, KATCHERI AMSOM DESOM,
P.O.ERANHIPALAM, KOZHIKODE-673 006.
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OP(C).No. 1535 of 2016 (O)
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3. KULAKKATT MUNDAYIL RAMANI,
D/O. NARAYANAN NAIR, AGED ABOUT 63 YEARS,
CHALIYAMKOTT, KOZHIKODE TALUK, NANMANDA AMSOM DESOM,
P.O.NANMANDA, KOZHIKODE-673613.
4. KULAKKATT MUNDAYIL UMADEVI,
D/O. NARAYANAN NAIR, AGED ABOUT 61 YEARS,
'GOVARDHANAM', PAIKKATT, KOZHIKODE TALUK,
NANMANDA AMSOM DESOM, CHEEKKILOD DESOM,
P.O.NANMANDA, KOZHIKODE-673315.
5. KULAKKATT MUNDAYIL SUDHAKARAN NAIR,
S/O. NARAYANAN NAIR, AGED ABOUT 59 YEARS,
NADUVALLOOR, KOHIKODE TALUK,
NADUVALLUR AMSOM DESOM, P.O.KAKKUR,
KOZHIKODE-673613.
6. KAMALAKSHI AMMA,
W/O. GANGADHARAN NAIR, AGED ABOUT 62 YEARS,
CHATTILOTTI, KOZHIKODE TALUK,
THAMARASSERY AMSOM, DESOM, CHELANNUR P.O.,
IRUVALLUR, KOZHIKODE-673616.
7. REKHA,
D/O. GANGADHARAN NAIR, AGED ABOUT 34 YEARS,
CHATTILOTTI, KOZHIKODE TALUK,
THAMARASSERY AMSOM, DESOM, CHELANNUR P.O.,
IRUVALLUR, KOZHIKODE-673616.
8. LEKHA,
D/O. GANGADHARAN NAIR, AGED ABOUT 32 YEARS,
CHATTILOTTI, KOZHIKODE TALUK,
THAMARASSERY AMSOM, DESOM, CHELANNUR P.O.,
IRUVALLUR, KOZHIKODE-673616.
9. RENJITH,
S/O. GANGADHARAN NAIR, AGED ABOUT 30 YEARS,
CHATTILOTTI, KOZHIKODE TALUK,
THAMARASSERY AMSOM, DESOM, CHELANNUR P.O.,
IRUVALLUR, KOZHIKODE-673616.
10. MANGALASSERY VASUDEVA KURUP,
S/O. RARAPPUNNI NAIR, AGED ABOUT 78 YEARS,
KOONIKKAMPUNATHIL, THAZHEVATTAM,
PARAMBATH HOUSE, KOZHIKODE TALUK,
NADUVALLUR AMSOM, DESOM, P.O.KAKKUR,
KOZHIKODE-673 613.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C).No. 1535 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF JUDGMENT DATED 7-9-1961 IN PAUPER ORIGINAL
SUIT NO. 6/1953 PASSED BY THE COURT OF THE ADDITIONAL SUB
JUDGE OF KOZHIKODE.
P2 TRUE COPY OF PRELIMINARY DECREE DATED 22-1-1998 IN
FD.I.A.NO. 579/1962 IN O.S.NO. 6/1953 PASSED BY THE COURT
OF 1ST ADDITIONAL SUB JUDGE, KOZHIKODE.
P3 TRUE COPY OF COMMISSION REPORT FILED BY THE ADVOCATE
COMMISSIONER P.K.NARAYANAN IN O.S.NO. 6/1953 BEFORE THE
COURT OF 1ST ADDITIONAL SUB JUDGE, KOZHIKODE DATED 22-8-1995.
P4 TRUE COPY OF THE INTERIM ORDER DATED 11-4-2016 IN E.P.
NO. 176/2016 IN F.D.I.A.NO. 579/1962 IN O.S.NO. 6/1953 OF
THE COURT OF SUBORDINATE JUDGE, KOZHIKODE.
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
K. HARILAL, J.
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O.P. (C) No.1535 of 2016-O
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Dated this the 4th day of July, 2016
JUDGMENT
The petitioners are the petitioners in E.P.No.176/2016 in F.D.I.A.No.579/1962 in O.S. No. 6/1953. This Original Petition (Civil) is filed challenging Ext.P4 order dated 11/4/2016, passed in the aforesaid Execution Petition, adjourning the aforesaid Execution Petition for further steps, to implead all the parties in the final decree.
2. The learned counsel for the petitioners advanced arguments contending that the court below has given the said direction, without considering the relevant aspects relating to the reliefs sought for, in its correct perspective. According to the learned counsel for the petitioners, the Execution Court failed to note O.P. (C) No.1535 of 2016 -: 2 :- that the properties sought to be delivered by the petitioners are in the actual possession of the present respondents alone, on the basis of the family arrangement, marked as Ext.B1, in the suit and other parties to the final decree have no right over the property in question and they are not necessary parties to the Execution Petition. Therefore, other parties in the final decree need not be impleaded in the Execution Petition.
3 Going by the impugned order, it is seen that the Execution Petition stands posted for further steps with a direction that the petitioners shall take steps for impleadment of all the respondents in the final decree. The learned counsel for the petitioners has produced a copy of the Execution Petition to substantiate the contention that all necessary parties from whom the relief sought for are made parties to the Execution Petition. Going by the prayer portion of the Execution Petition, as rightly submitted by the learned counsel for the petitioners, the reliefs sought O.P. (C) No.1535 of 2016 -: 3 :- for are not from the parties, who are not impleaded in the Execution Petition. According to the petitioners, the properties sought to be delivered to the petitioners are in the actual possession of the present respondents alone, who are made parties in the Execution Petition, on the basis of the family arrangement, marked as Ext.B1, in the suit and the other parties to the final decree have absolutely no right over the same and therefore, they need not be impleaded in the Execution Petition.
4. Going by the final decree application, it is seen that 95 persons are made respondents in the final decree. As rightly contended by the learned counsel for the petitioners, by passing of the final decree, severance of properties have been taken place. If that be so, in the Execution Petition, seeking delivery of the property, the parties from whom the delivery is sought for alone need be impleaded as parties and all the parties in the final decree need not be impleaded, after severance of properties.
O.P. (C) No.1535 of 2016 -: 4 :-
5. In the above view of the matter, it appears that prima facie the parties now stand impleaded in the Execution Petition are sufficient to proceed with the Execution Petition and if, during the course of the proceedings, the Execution Court finds that the interest of other parties are also affected by the relief, if granted, those parties can also be impleaded at that stage.
6. With the above observations, the Execution Court is directed to proceed with the Execution Petition, without impleading anybody else, at present.
This Original Petition (Civil) is disposed of accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge