Kerala High Court
Premachandran Nair vs Priji on 24 January, 2017
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938
Ex.SA.No. 1 of 2014 ()
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AS 25/2013 of SUB COURT, ATTINGAL
E.A.NO.109/2012 IN E.P.NO.36/2011 IN OS 116/2007 of MUNSIFF'S
COURT, VARKALA
APPELLANT/APPELLANT/OBSTRUCTION PETITIONER IN EP AND EA:
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PREMACHANDRAN NAIR, AGED 54 YEARS,
S/O.RAMAN PILLAI, BABU STORES (PROVISION STORE),
CHERUNNIYOOR PANCHAYATH WARD NO.III NO.219 FROM
PRAVEEN NIVAS, CHERUNNIYOOR DESOM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 142.
BY ADVS.SRI.M.RAJENDRAN NAIR
SRI.ABRAHAM P.GEORGE
RESPONDENTS/RESPONDENTS IN AS/RESPONDENTS IN EP AND EA:
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1. PRIJI, AGED 32 YEARS,
S/O.VISHNU, RESIDING AT VILAYIL VEEDU, CHIRAYINKIL,
DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM
DISTRICT, PIN - 695 304.
2. PRAVEEN, AGED 28 YEARS,
S/O.PREMACHANDRAN NAIR, RESIDING AT PRAVEEN NIVAS,
CHERUNNIYOOR DESOM, CHERUNNIYOOR VILLAGE,
CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT,
PIN - 695 142.
BY ADV. SRI.J.JAYAKUMAR
THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 24-01-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DSV/30/1/17
B. KEMAL PASHA, J.
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Ex.S.A. No. 1 of 2014
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Dated this the 24th day of January, 2017
J U D G M E N T
The 3rd party obstructor in the execution of a decree has come up by challenging the judgment of the Subordinate Judge's Court, Attingal, in A.S.No.25/2013. The decree in O.S.No.116/2007 of the Munsiff's Court, Varkala was put in execution through E.P.No.36/2011. When the Amin went to the spot for delivery, it was found that the present appellant was in possession of the shop room, and he obstructed the delivery. The appellant filed E.A.No.109/2012 in the E.P. before the execution court seeking a finding that the appellant was not liable to be evicted through the execution proceedings. Ex.S.A. 1 of 2014 -: 2 :-
2. The appellant is none other than the father of the judgment debtor. The decree holder purchased the property through a sale deed of the year 2004 through the Sub Registry office, Varkala. In fact, the appellant is not a third party or a stranger, since he was aware of the entire proceedings against the judgment debtor. According to the decree holder, the judgment debtor had stopped the business in the shop room and left the place without surrendering vacant possession of the building, after placing the appellant in it. Thereafter, the appellant started a provision store in the scheduled building, after the passing of the decree and obtained licence from the local authorities by submitting forged documents.
3. Both the execution court and the lower appellate court found that the appellant is not claiming any right over the shop room. The appellant has no case that he was entitled to adverse possession over the building. He has no case that he was a lessee or a licensee in respect of the Ex.S.A. 1 of 2014 -: 3 :- building. His only case is that he was in possession of the shop room for the last 30 years.
4. In fact, the appellant has failed to prove any right, title or interest over the decree scheduled property. By merely claiming possession, the appellant cannot obstruct the execution of the decree or the delivery, unless and until such possession crystallizes into some other right. Even the appellant has no case that he has any right in the building. It is evident that the E.A. is clearly collusive, and the appellant being the father of the judgment debtor has clearly colluded with his son to obstruct the delivery. The execution court as well as the lower appellate have made threadbare examination into all the facts and evidence. On going through the same, and also on hearing the learned counsel for the appellant, this Court does not find anything to interfere with the concurrent findings entered by the execution court and the lower appellate court. In fact, the question of law raised for admitting this second appeal does Ex.S.A. 1 of 2014 -: 4 :- not clearly emerge in this case. There is no merit in this second appeal and the same is only liable to be dismissed, and I do so.
In the result, this Second Appeal is dismissed. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy // P.S. to Judge.