SHAJUDHI Vs. SABINSA BEGUM
LAWS(KER)-2017-7-102
HIGH COURT OF KERALA
Decided on July 14,2017

Shajudhi Appellant
VERSUS
Sabinsa Begum Respondents

JUDGEMENT

P.SOMARAJAN,J. - (1.) Challenging the order passed on 31.05.2016 in E.P.No.496/2010 in O.S.No.918/1984 of the Additional Munsiff's Court-I, Thiruvananthapuram, the second judgment debtor came up with this petition under Article 227 of the Constitution of India.
(2.) Originally, a suit for injunction was filed and subsequently it was amended as one for recovery of possession based on the title of the plaintiff. The suit was dismissed by the Trial Court, but in appeal, it was reversed granting a decree for recovery of possession based on title. Thereafter, the decree was put in execution by the decree holder/plaintiff. The judgment debtors/defendants entered appearance and lodged their objection mainly on three grounds challenging the executability of the decree. The first ground is that in respect of the said property earlier a patta was granted on the application made by the judgment debtors by the concerned Land Tribunal and they have got title over an extent of 3 1/2 cents of property. The second ground is that they have constructed a building in that property and it was not considered by the First Appellate Court while decreeing the suit. The third ground raised is that the building is situated in an area wherein Kerala Buildings (Lease and Rent Control) Act, 1965, is made applicable and by virtue of the non-obstante clause incorporated under Section 11(1) of the Act, no eviction can be granted in respect of the building situated in the property. All these grounds were not properly considered by the Execution Court and ultimately ordered delivery of the property based on the decree granted, by its order dated 31.05.2016, which is under challenge in this petition under Article 227 of the Constitution of India.
(3.) Regarding the first issue, the patta, which was issued in the name of judgment debtors, is a pendente lite assignment prior to the passing of the decree by the First Appellate Court, wherein the rights and liabilities of the parties were adjudicated and a decree for recovery of possession based on title was granted. The patta issued, being a pendente lite assignment, is bound by the decree passed. If it is not raised either in the trial court or in the first appellate court, the same cannot be raised at the execution stage firstly on the ground that it is not at all an issue to be considered or adjudicated by the execution court and it is not within the jurisdiction of the execution court to adjudicate an issue which ought to have been raised, either in the trial court or in the appellate court. The jurisdiction vested with the execution court is to find out whether the decree is executable, and if it is found that it is executable, to execute it in accordance with the decree passed and it cannot go beyond the decree or to exercise any excess jurisdiction other than to execute the decree as such. Secondly, a ground which is available to the party as a ground of attack, if not raised, cannot be raised in the execution stage after attaining finality of the decree passed adjudicating the issue in between the parties. The grounds which were available to the party, if not raised, would stand as deemed to have been raised and deemed to have been rejected by virtue of the application of the principles of res judicata as embodied under explanation (IV) to Section 11 CPC.;


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