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2025 DIGILAW 1910 (KER)

KAMALAKSHI v. Thankamma, (Died)

2025-07-09

EASWARAN S.

body2025
JUDGMENT : Easwaran S., J. The present appeal arises out of the judgment in O.S No.365/2005 on the files of the Munsiff Court, Perumbavoor, and the judgment in A.S No.11/2018 on the files of the Sub Court, Perumbavoor. 2. The brief facts necessary for the disposal of this appeal are as follows:- O.S. No.365/2005 was instituted for a declaration that the decree obtained by the defendants in O.S. No. 210/1994 is initiated by fraud and is not binding upon the plaintiff and for a further partition of 1/5 share. The plaintiff contended that the property originally belonged to one Ayyappan, who had two wives, Kunjikali and Ponni. Out of the first wedlock with Kunjikali, one Narayani and Karthiyayani were born. Out of the second wedlock, there were three children, Thankamma, Narayanan and Sarada. Narayani, who was born in the first wedlock had one child, Ammini, who had in turn has a child Kamalakshi, who is the plaintiff in O.S No.365/2005. Whereas, Karthiyayini, the sibling of Narayani had one son Gangadharan, who had four children, Shobhana, Radhamani, Rameshan and Ajitha. Under the second wedlock, Ayyappan had three children as stated above. Out of the three children, Narayana had two wives Kamala and Kousalya. Whereas, Saradha had four children, Chandra, Sudevan, Thulasi and Prasad. 3. O.S.No.210/1994 was instituted by one Ponnamma, daughter of Kousalya, who is the second wife of Narayanan. In the suit filed by Ponnamma, the children of Ayappan namely, Thankamma, Saradha and Karthiyayini, were arrayed as a party. However, the 1 st daughter Narayani born in the 1 st wedlock of Ayappan was not made a party. Therefore, the plaintiff in O.S No.365/2005 contended that she being the legal heir under Narayani, was entitled to a share over the plaint schedule property and, without her in the party array, the judgment and decree obtained by Ponnamma was vitiated by fraud and hit by Section 44 of the Evidence Act. The defendants entered appearance and contested the suit stating that the remedy of the plaintiff was not to file a separate suit, but they should have agitated the cause in the execution proceedings initiated in execution of O.S. No.210/1994. It was further contended that the decree passed in O.S.No.210/1994 was already executed and that the respective shares were taken hold by the parties. At this point of time, the entire transaction cannot be reopened. 4. It was further contended that the decree passed in O.S.No.210/1994 was already executed and that the respective shares were taken hold by the parties. At this point of time, the entire transaction cannot be reopened. 4. The Trial Court on consideration of the contentions framed the following issues:- 1. Whether the preliminary decree and final decree in O.S No.210/1994 are liable to be set aside? 2. Whether the plaintiff is entitled to get a decree for partition of plaint schedule property and if so what shall be the share if any to which each of the parties is entitled? 3. Whether the delivery of property in E.P No.30/2005 dated, 30.11.2005 is liable to be set aside? 4. Whether the plaintiff is entitled to get a decree for permanent prohibitory injunction as prayed for ? 5. Relief and costs? 5. Later an additional issue was also framed as to whether the suit was barred by provisions of Order 21 Rule 97 to 101 of Code of Civil Procedure (for short ‘CPC’). The trial court did not consider the issues 1 to 5 and proceeded to answer the additional issue alone and dismissed the suit as not maintainable under provisions of Order 21 Rule 97 to 103 of CPC and thereafter permitted the plaintiff to file an application under Order 21 Rule 97 before the Execution Court and excluded the periods spent in the suit for the purpose of computing the limitations. Thereafter, the plaintiff preferred application under Order 21 Rule 97 of CPC and during the pendency of the said application preferred A.S No.11/2018 with an application to condone the delay of 905 days in preferring the appeal. By order dated 19.11.2018, the application for condonation of delay was dismissed, consequently the appeal itself was also dismissed. Aggrieved by the dismissal of the appeal confirming the judgment and decree, the present appeal is filed. 6. By order dated 19.11.2018, the application for condonation of delay was dismissed, consequently the appeal itself was also dismissed. Aggrieved by the dismissal of the appeal confirming the judgment and decree, the present appeal is filed. 6. When the appeal was admitted to file, the following substantial questions of law were framed:- (1) Has not the trial court gone wrong in law in dismissing the suit as not maintainable, holding that a plaintiff in a suit for partition of her personal share in plaint schedule properties, cannot file such suit when certain other sharers have colluded and filed an earlier suit for partition and obtained collusive preliminary decree among them and a final decree also, without this sharer/ plaintiff being made party to such earlier suit and such collusive decree in the earlier suit is also under challenge in the present suit, and that the remedy of the present plaintiff is not to file the fresh suit but to approach the execution court in the execution proceedings in the earlier suit under order 21 Rule96 to 101 of Code of civil Procedure 1908? (2) Does not Rule 104 of Order 21 of Code of Civil Procedure specifically save any prior suit pending adjudication, of rights between the parties, before any orders under any proceedings under order 21 Rule 97 to 101 are passed? (3) Ought not the court below have passed a preliminary decree for partition of plaint schedule properties as prayed for as by all means the plaintiff is a claimant under a Class 1 heir and she herself is a class 1 heir under the schedule under Section 8 of the Hindu Succession Act 1956 in respect of the plaint schedule properties of Ayyappan as on the date of death of Ayyappan? (4) Ought not the courts below have held that the decree in O.S No.210/1994 Munsiff's Court, Perumbavoor is by no means binding on the plaintiff / sharer to plaint schedule properties, when she is not even made party to the said suit and that the decree in O.S No.210/1994 is only to be ignored and set aside and all proceedings thereto also to be set aside? (5) Has not the court below gone wrong in law in not following the various principles of law laid down in the manner of consideration of a delay condonation application and should not the court have adopted a just and pragmatic approach? 7. Heard Shri.R.Nikhil, the learned counsel appearing for the appellants, Smt.M.A.Zohra, the learned counsel appearing for the 7 th respondent, Shri.G.P.Shinod, the learned counsel appearing for the 6 th respondent and Shri.P.Thomas Geeverghese, the learned counsel for respondents 1 to 5 and 9 to 15. 8. The learned counsel for the appellants, Shri.R.Nikhil, submitted that the delay in preferring the appeal was explained satisfactorily. The reason for delay being, after the dismissal of the suit, though an application under Order 21 Rule 97 of CPC was preferred, on the basis of the legal advice received by the appellants, it was thought expedient to prefer the appeal against the dismissal of the suit. The learned counsel for the appellants further pointed out that the trial court considered only the additional issue based on the objection of the defendants without going into the merits of the case. With reference to the genealogy extracted in page No.5 of memorandum of appeal, the learned counsel for the appellants pointed out that the legal heirs of deceased Narayani, the 1 st daughter born in the wedlock of Ayyappan was certainly a necessary party to the suit and therefore the trial court ought to have entertained the suit and proceeded the case on merits. In support of his contention relied on the decision of the Single Bench of this Court in Gangadharan T.V v. Jeevan Ambatt @ Jagajeevan [2024 KHC 669]. 9. Per contra, Shri.G.P.Shinod, the learned counsel appearing for the 6 th respondent would contend that the suit was not maintainable and the remedy of the appellants were to prefer an application under Order 21 Rule 97 of CPC has been correctly found by the trial court. In fact, complying with the directions given in the judgment and decree under challenge, the appellants had exhausted the remedy of preferring an application under Order 21 Rule 97 of CPC and later withdrew the same and were estopped from filing the appeal. 10. In fact, complying with the directions given in the judgment and decree under challenge, the appellants had exhausted the remedy of preferring an application under Order 21 Rule 97 of CPC and later withdrew the same and were estopped from filing the appeal. 10. On the other hand, Smt.Zohra, the learned counsel appearing for the 7 th respondent would contend that the pendency of the execution proceedings in O.S No.210/1994 was known to the appellants herein and they were all watching the proceedings without raising any independent claim in the execution stage. There were several other proceedings before this Court, wherein this Court had ordered police protection for the respondents in order to protect the right over the property. It is also pointed out that at this stage, if the suit is restored and proceeded on merit, the parties will suffer, especially since, the decree in O.S No.210/1994 is already executed and the parties have taken shares and have sold the respective shares over the property. 11. Shri.P.Thomas Geeverghese, the learned counsel for the other respondents would support the appellants and would point out that in the absence of the appellants in the party array of O.S No.210/1994, the decree is not binding upon them. It is also pointed out that they have no objection in plaint. 12. I have considered the rival submissions raised across the Bar, perused the judgments and decree and also the records of the case. 13. One of the substantial questions of law framed by this Court is as regards whether the First Appellate Court was not justified in condoning the delay, the parties are at serious variance as regards the maintainability of the suit itself and they were not amenable to have the appeal restored and proceeded on merits. Though, during the course of consideration of the appeal, this court reminded the learned counsel for the respondents that the lower appellate court did not consider any questions on merits and hence this Court may not be justified in considering the question of maintainability of the suit, the learned Counsel appearing for respondents 6 and 7 asserted that this court may proceed to consider the question of law raised in the appeal. Hence, this court proceeded to consider the substantial questions of law raised as 1 to 5. 14. Hence, this court proceeded to consider the substantial questions of law raised as 1 to 5. 14. As regards the question of delay, it is pertinent to mention that it is not a case where the delay was not satisfactorily explained. The explanation for delay as seen from the application for condonation of delay is that, the time which was taken for prosecuting the application under Order 21 Rule 97 of CPC. Therefore, the question before the First Appellate Court was whether the plaintiff ought to have been granted the benefit under Section 14 of the Limitation Act. Admittedly, by order dated 06.09.2018, the application under Order 21 Rule 97 of CPC was withdrawn and thereafter, the application for condonation of delay was taken up for consideration before the First Appellate Court. The reading of the order of the First Appellate Court shows that the withdrawal of E.A No.153/2017 was brought to the notice of the First Appellate Court. Despite this, the First Appellate chose to dismiss the application for condonation of delay as not maintainable, inasmuch as the delay having not been properly explained. The considered view of this Court is that, such a pedantic approach by the First Appellate Court was totally unwarranted. 15. Be that as it may, since, the parties are at serious variance as regards the entitlement of the appellants to have the appeal heard on merits, this Court has proceeded to consider the substantial questions of law raised as 1 to 5 in the following manner. 16. As stated above, from the genealogy chart disclosed in page No.5 of the memorandum of appeal, it is evident that late Ayyappan had two wives and children were born in the two wedlocks. It is indisputable that, the children born in the two wedlocks are certainly entitled for a share in the property. Ext.A3 judgment in O.S No.210/1994 shows that the first daughter of late Kunjikali, who is the first wife of late Ayyappan was not made a party to the proceedings. No plausible explanation is forthcoming from the side of respondents 6 and 7 as regards the non-impleadment of the first daughter of the late Kunjikali. However, vague assertion is made before this Court that, the property, which is now sought to be partitioned, is not the property belonging to the late Ayyappan. No plausible explanation is forthcoming from the side of respondents 6 and 7 as regards the non-impleadment of the first daughter of the late Kunjikali. However, vague assertion is made before this Court that, the property, which is now sought to be partitioned, is not the property belonging to the late Ayyappan. However, this Court finds that the second daughter Karthiyayani, born out of the first wedlock of the late Kunjikali was made a party to O.S No.210/1994 and a share was allotted to her also. If that be so, this Court fails to comprehend the reason why, the legal heirs of Narayani, who is the first daughter of late Ayyappan, was not impleaded in O.S No.210/1994. Admittedly, the plaintiff claims through Ammini her mother, who is the sole daughter of Narayani, the first daughter born in the wedlock of late Ayyappan and Kunjikali. If that be so, the irresistible conclusion is that the plaintiff is certainly entitled to maintain the suit, since, the decree passed in O.S No.210/1994 was not binding on her. 17. However, the thrust of the argument of learned Counsel for the 6th and 7th respondents is that the present suit is not maintainable inasmuch as the appellant has already filed an application under Order 21 Rule 101 of the Code of Civil Procedure 1908 and the same was withdrawn. The stand of the appellant is that, legally the said application was not maintainable and hence she withdrew the same and preferred the first appeal. Therefore, this court is called upon to consider the question as to whether the remedy of the appellant is to prefer and appeal under Section 96 of the CPC, 1908 or prefer an application under Order 21 Rule 101. 18. For sake of convenience, Order 21 Rule 101 of CPC is extracted hereunder. Therefore, this court is called upon to consider the question as to whether the remedy of the appellant is to prefer and appeal under Section 96 of the CPC, 1908 or prefer an application under Order 21 Rule 101. 18. For sake of convenience, Order 21 Rule 101 of CPC is extracted hereunder. “Rule 101- All questions(including questions relating to right, title interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application ,shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such question .” Order 21 Rule 101 postulates that as soon as an application is made under Rule 97 or Rule 99 or by their representatives the issue shall be decided by the court dealing with an application. Turning to Order 21 Rule 97 it deals with an application by a person in possession obstructing the delivery to the decree holder, whereas under Order 21 Rule 99, remedy is provided to a person other than judgment debtor who is dispossessed in execution of a decree to raise an objection. 19. The purport of these rules is to basically confine the adjudication of an issue arising out of an execution of the decree, in the execution proceedings itself and not by a separate suit. The adjudication will result, in the person claiming under the judgment debtor or claiming an independent right, being put back in possession of the property. But the question is, in a partition suit, where a third party comes and raises a question regarding his or her share independent to that of the judgment debtor or the plaintiff/decree holder and sets up an independent claim over decree schedule property and claims separate possession over a part of the decree schedule property, can the executing court go behind the decree and hold in favour of the applicant. The answer is ‘No’. Primarily because, the executing court does not have the power to go behind the decree nor can it vary the decree while considering the application under Rule 97 or under Rule 99. The answer is ‘No’. Primarily because, the executing court does not have the power to go behind the decree nor can it vary the decree while considering the application under Rule 97 or under Rule 99. Therefore, the finding of the trial court that the remedy of the plaintiff-appellant is to file an application under Order 21 Rules 97 to 103 is palpably wrong and liable to be interfered with. 20. The Learned Counsel for the 6 th respondent placed reliance on the decision of the Hon’ble Supreme Court in Shreenath v. Rajesh [1998 KHC 270] to contend that, the remedy of the appellant is to prefer an application under Order 21 Rule 97. Considering the impact of Rule 97 and 104, the Supreme Court held as follows. “10. Under sub clause 1 O.21, R.35, the Executing Court delivers actual physical possession of disputed property to the decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. O.21, R.36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree holder gets the symbolic possession. O.21, R.99 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub clause (2) after 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with provisions contained hereinafter. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub clause (2) after 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with provisions contained hereinafter. This refers to O.21, R.101 (As amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under O.21, R.97 or R.99 shall be determined by the Court and not by a separate suit. By the amendment, one has not to go for afresh suit but all matter pertaining to that property even if obstructed by a stranger is adjudicated and finality given even in the executing proceedings. We the expression "any person" under sub clause (1) is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under O.21, R.97. Thus by the use of the words 'any person' it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger. 11. So, under O.21, R.101 all disputes between the decree holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree holder and other person claiming title on their own right to get it adjudicated in the very execution proceedings. We find that O.21, R.35 deals with cases of delivery of possession of an immovable property to the decree holder by delivery of actual physical possession and by removing any person in possession who is bound by a decree, while under O.21, R.36 only symbolic possession is given where tenant is in actual possession. O.21, R.97, as aforesaid, conceives of cases where delivery of possession to decree holder or purchaser is resisted by any person. 'Any person', as aforesaid, is wide enough to include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including stranger.” 21. O.21, R.97, as aforesaid, conceives of cases where delivery of possession to decree holder or purchaser is resisted by any person. 'Any person', as aforesaid, is wide enough to include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including stranger.” 21. However, this Court is afraid that the principles laid down by the Hon’ble Supreme Court in the aforesaid decision may not apply to the facts of the present case. It must be remembered that the appellant has sought to sustain her suit relying on Section 44 of the Evidence Act. According to her the judgment and decree in OS No 210 of 1994 was obtained by fraud. That be so, this court sees no reason to hold that the present suit is not maintainable. At any rate, the decree in OS No.210/1994 being not binding on the plaintiff, she was entitled to maintain a separate suit for partition. Still further, the executing court does not have the power to modify the decree and revisit the manner of allocation of shares in the decree schedule property and therefore even if an application under Order 21 Rule 97 is preferred, the same will not sufÏce the cause. At any rate, when a suit is filed complaining that the decree obtained by the defendant is vitiated by fraud, there is no gainsay in contending that the remedy of the plaintiff is to file an application under Order 21 Rules 97 to 103 of the Code of Civil Procedure 1908. 22. In Trinity Infraventures Ltd. & Ors Vs M.S Murthy & Ors. [2023 SCC Online SC 738], the Supreme Court held that in an enquiry under Order XXI Rules 97 to 101 CPC, the Executing Court cannot decide questions of title set up by third parties(not claiming through or under the parties to the suit or their family members) who assert independent title in themselves. 23. From the facts disclosed in the appeal, it is evident that the appellants are setting up an independent title over the property and not claiming under the plaintiffs or defendants in OS No 210/1994. 23. From the facts disclosed in the appeal, it is evident that the appellants are setting up an independent title over the property and not claiming under the plaintiffs or defendants in OS No 210/1994. It must be remembered that a right of suit to a third person is not barred even after the amendment to the Code by taking away the right of suit under Order XXI R-103 CPC by Amendment Act 104 of 1976. However, the said right is qualified by the conditions prescribed under Order 21 Rules 97 to 101. If in a given case it is found that the conditions stipulated in Order 21 Rules 97 to 101 is attracted then a separate suit cannot be maintained. However, in cases like the one involved here, the party cannot to be tied to the rigour of Order 21 Rules 97 to 101 of the CPC, and thus curtailing his right to establish independent title. Therefore, in conclusion, this court holds that the suit filed by the appellant is maintainable and must be considered on merits. 24. Be that as it may, the above observation made by this Court should not be taken as conclusively laying down the right of the plaintiff to claim partition over the plaint schedule property. The plaintiff, will have to independently establish her right for partition. In view of the above discussions, the questions of law raised as above is answered in favour of the appellant. 25. As an upshot of above findings, the appellants are entitled to succeed. Accordingly, the judgment in A.S No.11/2018 and O.S No.365/2005 are reversed and O.S No.365/2005 is restored to the files of the Munsiff Court, Perumbavoor. The Munsiff Court, Perumbavoor, shall proceed with the trial of the suit in accordance with law as expeditiously as possible at any rate within a period of six months from the date of receipt of copy of this judgment. The parties shall appear before the Munsiff Court, Perumbavoor on 04.08.2025. Before parting with the case, this court must notice certain intervening developments that took place during the pendency of the appeal. The appellant filed IA No.2 of 2018 seeking appointment of advocate commissioner contending that the respondents are committing widespread waste in the property despite being restrained by an order of injunction. Before parting with the case, this court must notice certain intervening developments that took place during the pendency of the appeal. The appellant filed IA No.2 of 2018 seeking appointment of advocate commissioner contending that the respondents are committing widespread waste in the property despite being restrained by an order of injunction. By order dated28.02.2019, this Court had appointed Adv.Arunkumar as the Advocate Commissioner to ascertain the waste committed in the plaint schedule property. Accordingly, the Advocate Commissioner has filed a report and photographs regarding the extent of waste committed in the property. Prima facie, it appears the apprehension of the appellant is true. However, since, this Court is remanding the matter back to the Munsiff Court, Perumbavoor, the plaintiff/ appellants are given liberty to agitate the claim for damages based on the report of the Advocate Commissioner filed before this Court subject to the evidence adduced by the parties as regards who has caused the aforesaid damage. Therefore the Munsiff court is directed to mark the report of the advocate commissioner in evidence and proceed to consider the question of the entitlement for damage which would depend upon the Court finding in favour of the appellants and determining the respective share of the appellants herein. In the light of the aforesaid observations, no separate orders are required in the application seeking prosecution for violation of injunction. It is made clear that the trial court shall dispose of the suit untrammeled by any observation made by this court in this Judgment.