Kerala High Court
Mukundan vs Mrs. Sathyabhama on 11 August, 2016
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938
OP(C).No. 2793 of 2015 (O)
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EP NO. 180/2014 IN OS 20/2010 OF MUNSIFF COURT, NORTH PARAVUR
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PETITIONER(S):
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1. MUKUNDAN, S/O. AYYAPPANKUNJI,
KOZHIPARAMBIL HOUSE, KIPAMANGALAM EACH DESOM,
KAIPAMANGALAM VILALGE, NOW RESIDING AT
IRINJALAKUDA, POOCHIRAKULAM ROAD,
C/O. SAJOY NATHAM.
2. DR.OMANAN, S/O. AYYAPPANKUNJI,
KOZHIPARAMBIL HOUSE, KAIPAMANGALAM BEACH DESOM,
KAIPAMANGALAM VILLAGE, KODUNGALLOOR TALUK.
3. ADV. INDRADAS, S/O. AYYAPPANKUNJI,
KOZHIPARAMBIL HOUSE, KAIPAMANGALAM BEACH DESOM,
KAIPAMANGALAM VILLAGE, KODUNGALLOOR TALUK.
BY ADVS.SRI.K.NARAYANAN (PARUR)
SRI.P.M.POULOSE
RESPONDENT(S):
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MRS. SATHYABHAMA
W/O. VASUDEVAN NAMBISSERI, CHELLANAM - THOPPUMPADI
THEERADESA PATHA NO.66, NEAR AYIRAM THAIPALLY
(CHURH), CHETHALA SOUTH, ARTHUNGAL POST,
CHERTHALA TALUK - 688 530.
BY ADVS. SRI.K.S.BHARATHAN
SMT.S.ANJUSHA
SRI.B.C.MENON
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
bp
OP(C).No. 2793 of 2015 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1:- TRUE COPY OF THE FINAL DECREE IN OS NO. 20/2010 IN
IA NO. 1234/2011 ON THE FILES OF MUNSIFF COURT,
NORTH PARAVUR.
P2:- TRUE COPY OF PETITION FOR GETTING DELIVERY OF THE
SHARE IN FAVOUR OF THE PETITIONERS SUBMITTED AS EA
234/2015.
P3:- TRUE COPY OF EXECUTION PETITION NO. 180/2014 IN OS
20/2010 ON THE FILE OF MUNSIFF COURT, NORTH PARAVUR.
P4:- TRUE COPY OF OBJECTION FILED BY JUDGMENT DEBTOR IN
EA 234/15 BEFORE THE MUNSIFF COURT, N. PARAVUR.
P5:- TRUE COPY OF ORDER IN EA 234/15 IN EP 180/2014 OF
MUNSIFF COURT, N. PARAVUR.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
"CR"
K. RAMAKRISHNAN, J.
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O.P.(C). No. 2793 OF 2015
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Dated this the 11th day of August, 2016
JUDGMENT
This is a petition filed by the petitioners challenging the order passed in E.A. No. 234/2015 in E.P. No. 180/2014 in O.S. No. 20/2010 on the file of the Munsiff Court, North Paravur under Article 227 of the Constitution of India.
2. It is alleged in the petition that the suit was filed by the respondent herein for partition of the plaint schedule property and allotment of one such share to her and a preliminary decree for partition was passed allotting one such share to her and remaining shares to the defendants jointly. Thereafter, final decree application was filed and final decree was also passed separating the share of the plaintiff in the suit and allotting the remaining property jointly to the defendants 1 to 4 in the suit as per Ext. P1 final decree. The respondent herein is in possession of the share alloted to her. Thereafter, the remaining defendants who are defendants 1 to 4 in the suit filed E.P. No. 180/2014 as Ext. P3 for delivery of the property alloted to them jointly. During the pendency of execution petition, first decree holder Smt. Bharathi died. The remaining decree holders filed Ext. P2 as E.A. No. 234/2015 for effecting delivery of the property on behalf of the deceased first defendant also and respondent herein filed Ext. P4 objection to the same. But the learned Munsiff dismissed the application as per Ext. P5 impugned OP(C)No.2793/2015 2 order. Aggrieved by the same, the present petition has been filed.
3. Heard Adv. Sri. K. Narayanan (Paravoor), counsel appearing for the petitioners and Adv. Sri. K.S. Bharathan, counsel appearing for the the respondent.
4. The counsel for the petitioners submitted that the court below had not properly understood the implication of Order XXI Rule 15(1) and (2) of the Code of Civil Procedure in this regard. When joint decree is passed, a petition can be filed on behalf of the others by anyone of the joint decree holders and the court is vested with the power to pass appropriate orders, protecting the interest of the persons who have not joined the application. That does not mean that without their juncture, the application is not maintainable. The court can very well observe that the delivery has been effected for and on behalf of the deceased first defendant as well, so that the interest of the first defendant can be protected and the right if any of the legal heirs of the deceased first defendant will not be affected on account of the joint delivery of the property and the other decree holders will not get any special right over the property as well.
5. On the other hand the learned counsel for the respondent submitted that without the juncture of the legal heirs of the deceased first defendant, who is the first decree holder, the application is not maintainable. Further, an application was filed for impleading the legal heirs of the deceased first decree holder. But OP(C)No.2793/2015 3 later that petition was not pressed. That shows that there is no bonafide in filing the application.
6. There is no dispute regarding the fact that the preliminary decree was passed and the share of defendants 1 to 4 in the suit in the properties were declared jointly in their favour and even in the final decree proceedings, allotment was made jointly to the defendants 1 to 4 and the share of the respondent herein was separately allotted and she is in possession of the portion alloted to her as per the final decree. So her right is not affected in the matter.
7. It is also an admitted fact that all the four defendants jointly filed Ext. P3 execution petition for delivery of the property alloted to them jointly and during the pendency of the execution petition, the first decree holder (first defendant) died. It is true that the petitioners who are the remaining decree holders also filed an application to implead the legal heirs of the deceased first defendant and also filed Ext. P2 application as E.A. No 234/2015 under Order XXI Rule 15 of the Code of Civil Procedure for permission to execute the decree for and on behalf of the deceased first decree holder as well without impleading the legal heirs of the deceased first decree holder. But, probably under the bonafide impression that they will get the benefit of Order XXI Rule 15, they did not press the application to implead the legal heirs of the first decree holder and OP(C)No.2793/2015 4 that petition was dismissed as not pressed. But the court below dismissed E.A. No. 234/2015 also as per the impugned order.
8. Order XXI Rule 15 reads as follows:-
"15. Application for execution by joint decree- holder:- (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree impose any condition to the contrary, apply for the execution of the whole decree for the benefit of them all or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application."
9. What is contemplated under Order XXI Rule 15(2) is that the court can pass such orders deem fit protecting the interest of the person who has not joined the execution, when an application has been filed by the other joint decree holders for the execution of the decree and seek delivery of the property for and on behalf of the other decree holder as well. That does not mean that without the juncture of the other decree holders, the execution petition is not maintainable or delivery cannot be effected at all in the absence of the other decree holders.
10. It may be mentioned here that making an order that OP(C)No.2793/2015 5 delivery is effected for and on behalf of the deceased first defendant also will be a possible order which can even protect the interest of the estate of the deceased first defendant even if the delivery was effected in favour of the other joint decree holders. If they want for separate possession, they will have to seek their remedy by filing a separate suit for partition of that property.
11.In the decision reported in M.C.Sreedharan v. Pattieri Kumaran (AIR 1981 Ker.51) it has been held that:
"Where there were two decree-holders who had joined in the execution application and one of them died before execution of the decree the surviving decree-holder could execute the decree on his own behalf and on behalf of the legal representatives of the deceased decree-holder in accordance with the provisions of O.21 Rue 15 and production of succession certificate as per S.214ofthe Succession Act would not be necessary. It is further held in the same decision that while allowing the surviving decree holder to proceed with the execution, it is necessary to make sufficient safeguards to protect the interests of the non joining decree holder and legal representative of the deceased decree holder if any".
12. In the decision reported in Jagdish Dutt and another v. Dharam Pal and others (1999 (3) SCC 44), it has been held that provision under Order 2 Rule 15 enables joint decree holders to execute decree in its entirety and is of no avail where the whole of the decree cannot be executed. In such an event decree holder will have to work out his rights in a suit for partition and obtain OP(C)No.2793/2015 6 appropriate relief.
13. In the decision reported in Panna Lal Agrawala v. Kanhaiya Lal Jain and others (AIR 1974 Patna 284), it has been held that:
"One of several joint decree-holders can apply for the execution on behalf of all. It is not incumbent upon the applicant to expressly state that he is applying on behalf of all the decree-holders. If it appears to the Court that the decree is, being executed for the benefit of all the decree holders it may allow the execution to proceed. Rule 15 is based upon the principles of equity and good conscience for saving the judgment debtor from harassment.".
14. In the decision reported in Sri Kant v. Bansraj Sing (AIR 1986 Allahabad 5) it has been held that an application for execution of decree filed by one of co-decree holders is maintainable and it is open for one decree holder to file execution petition for benefit of other decree holders invoking Order 21 Rule 15 of the Code of Criminal Procedure.
15. In the decision reported in Nandlal v. Mahavir Kumar and other (AIR 1974 Rajasthan 189) it has been held that:
"When an execution petition is filed by the two decree holders and one of them died during the pendency of the proceedings, other can proceed with execution for the benefit of the L.Rs of the dead decree holder without succession certificate being produced u/s.214 of the Succession Act. The law makers have put two conditions for a joint decree holder to exercise his right to execute the decree, firstly, that the decree itself must not contain OP(C)No.2793/2015 7 any condition which may debar one decree holder to take out the execution proceedings and secondly that a person who wants to carry on the execution proceedings must do so only when the execution is for the benefit, of all the decree holders, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. The right to take out executions does not arise out of this provision but it arises out of the decree passed by a competent Court. It simply provides that a single decree holder has a right to take out execution proceedings, if other decree holders in whose favour the decree is passed are not in a position to join him, but it should be done only for the benefit of all, or, or, if any one of the decree holders has died, then for the benefit of the survivors and the legal representatives of the deceased".
16. The same view has been reiterated in the decision reported in Jugul Kishore and another v. Gobhardhan Lal and other (AIR 1964 Allahad 548) and Chimna v. Chunnilal and another (AIR 1955 Rajasthan 197). In the later decision it has been further held that:
"In the case of joint decree holders, it is permissible by law for one or more out of several decree holders to present an application for execution. An application under O.21 Rule 15 would be considered to be an application only by those persons who have actually made the application even though such an application is made for the benefit of all the decree holders. This is a special provision, which has been made in order that a judgment debtor may not be harassed by a number of applications for execution against him.
When an application is made under this rule, it is the duty of OP(C)No.2793/2015 8 the Court, before allowing the execution of the decree to proceed, to see that there is sufficient cause for allowing the decree to be executed on such an application and it must take such steps as may be necessary in the circumstances of the case to protect the interests of the persons who have not joined in the application. When this is done, then it would follow that the persons who have made the application represent the interest of all the decree holders.
Under such circumstances, if it becomes necessary at any stage to file an appeal against the order of the executing Court in the higher Court, then it would not be necessary that all the decree holders must be impleaded by the party filing the appeal, If the persons filing the application represent the interests of all the decree holders in the Court of execution, there is no reason why they should not represent the other decree holder in appeal.
Of course, if the appellate Court thinks that it is necessary to safeguard the interests of other decree holders, it can and should bring them on the record of the appeal. But in case no such order is made, then the mere fact, that a party filing the appeal has not impleaded them, would not be fatal to the prosecution of the appeal".
17. In the decision reported in Korada Bottamma and Anr. v. Korada Auydinarayana and Ors. (43 Ind.Cas.1008) it has been held that:
"The proper course would be to allow the plaintiffs Nos.1 and 3 to execute the decree under Rule 15, Order XXI, and then if the 2nd defendant who claims to be the heir of the 2nd plaintiff brings himself on the record in these proceedings and raises the question as to his heirship, the Court will proceed to enquire into the matter OP(C)No.2793/2015 9 and dispose of it according to law".
18. In the decision reported in Alathoor Barudeen and Anr. v. Gulam Moideen and Anr. [(1913) 24 MLJ 541) it has been held that :
"Section 231 of old Code of Civil Procedure (CPC) corresponding to order XXI Rule 15 of the new Code explicitly laid down that execution in favour of one only of several joint decree holders could be allowed only if Court feels sufficient cause for allowing decree to be executed on application made by one alone of them and then it was duty of Court to pass such orders as it deems necessary for protecting interests of persons who had not joined in application".
19. In the decision reported in K. Bhaskaram and another v. Mohammad Moulana (Died) and others (AIR 2005 A.P 524) it has been held that:
"Under Order 21 Rule 15(1),where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or , where any of them has died for the benefit of the survivors and the legal representatives of the deceased. Under O.21 Rule 15(2), where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order, as it deems necessary for protecting the interests of the persons who have not joined in the application. Therefore, the contention of the learned counsel appearing for the respondents that on the application filed by one of the joint decree OP(C)No.2793/2015 10 holders, such a person is entitled to get the decree executed in exclusion of others, cannot be accepted and the said contention is contrary to the stipulations contained in Order 21 Rule 15 C.P.C. The said Rule 15 only gives a power to one of the joint decree holders to file an application to execute the decree for the benefit of all the decree holders, but not for the exclusion of any of the decree holders. Even if one of the decree holders dies, the interests of the survivors and the legal representatives or such deceased decree holder are to be protected".
20. It has been held in the decision reported in Noor Zaman Khan v. Mt. Maimunnissa Bibi and other (AIR 1958 Patna 228 ) relying on the decision reported in A.J. Meik v. The Midnapur Zemindary Company Ltd. (AIR 1919 Pat. 286) that:
"A joint decree cannot be executed by one of the several joint decree holders in respect of what the applicant considers his share in the decree. Much less can it be executed by one of the decree holders in respect of the entire decree unless it is on behalf of the decree holders for the benefit of them all".
21. In the decision reported in Gopla Panicker and Others v. Assanissa and Others (1972 KHC 93) it has been held relying on the decision reported in Ramnibas Agarwalla v. Mt. Padumi Kalita and other (1967 ASSAM AND NAGALAND 27) that:
.... "where the Court has ruled that S.214 of the Succession Act cannot apply to a case of a joint decree in view of the provisions of O.21 R.15 CPC. One of the joint decree holders has the right, subject to such safeguards as the Court may make, OP(C)No.2793/2015 11 to execute the whole decree on behalf of himself and the others. The 3rd plaintiff being a joint decree holder cannot be trammelled by S.214 of the Succession Act and his execution petition can be proceeded with subject to any order that the Court may pass under O.21 R.15(2) CPC".
22. The same view has been reiterated in the decision reported in Mstt. Sarwari ivad Begum v. Nazir Ahmed and Others (2003 KHC 3313) where also it has been held that:
"Provisions of O.21 R.15 is intended more for the benefit of the judgment debtor as the judgment debtor would not be troubled with various execution proceedings by each of the decree holders. It is not necessary that the all the joint decree holders must join in making execution application".
23. In view of the above dictums, it is clear that Order 21 Rule 15 provides a right for one of the joint decree holders to file an application for execution for and on behalf of himself and other joint decree holders and there is a duty cast on the court under Order 21 Rule 15(2) when such an order is passed what are all the safeguards to be taken by the court to protect the interest of the non party joint decree holder. Further it is also mentioned in the decisions that non joining of one of the decree holders is not fatal for proceeding with the execution by other joint decree holders unless there is any condition preventing such execution in the decree and if the court is of the view that it is not for the benefit of OP(C)No.2793/2015 12 the non party joint decree holder. Even in cases where all the joint decree holders filed an application for execution of the joint decree passed in their favour, one of the joint decree holder dying during the pendency of the case will not prevent surviving the decree holder from the proceeding with the execution even without the impleadment of the legal heirs of the deceased decree holder but only thing is that the court will have to make orders in the order passing delivery safeguarding the interest of the legal heirs of the deceased decree holder as well.
24. It is seen from the affidavit filed in support of EA.No.234/2015 seeking for permitting the remaining decree holders to proceed with the execution without impleading the legal heirs of the deceased first decree holder, the reason for making such an application has been explicitly mentioned that it is to avoid delay in disposal of the execution proceedings that such an application is filed. There is no dispute regarding the fact that the first respondent is in possession of the property allotted to her and she is not entitled to challenge the joint decree holders filing an application for execution of their joint decree invoking Order 21 Rule 15 of the Code of Civil Procedure.
25. It is seen from the affidavit that what is intended by the remaining decree holders is to get the joint decree executed not only for themselves but for and on behalf of the legal heirs of the OP(C)No.2793/2015 13 deceased first decree holder as well. So under such circumstances, there is no reason to doubt their genuineness at this stage and dismissal of the application by the court below on that ground is not sustainable and if at all court felt that such an order can be passed, the court ought to have imposed conditions for effecting delivery in favour of the remaining joint decree holders instead of dismissing the application. So the order passed by the court below dismissing EA.No.234/2015 in EP.No.180/2014 is set aside and the petition is allowed and the court below is at liberty to proceed with with the execution proceedings with the remaining decree holders as provided under Order 21 Rule 15 of the Code of Civil Procedure and make such orders in the execution proceedings while effecting delivery protecting the interest of the deceased first decree holder as has been enumerated in the decisions discussed by this court in the judgment. At the time of effecting delivery if it is found that legal heirs of the first decree holder are in possession of the property, then that fact also may be mentioned in the delivery order and their possession need not be disturbed but explicitly to be mentioned that the delivery has been effected protecting the interest of the possession of the joint decree holder in the property. Considering the fact that what remains is only order delivery efforts must be made by the court below to dispose of EP.No.180/2014 itself as expeditiously as OP(C)No.2793/2015 14 possible, at any rate, within one month from the date of receipt of a copy of this judgment.
With the above direction and observation the petition is disposed of. The office is directed to communicate this judgment to the court below, at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE DCS/cl