Full Judgment Text
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PETITIONER:
RAJESWARI AMMA AND ANOTHER
Vs.
RESPONDENT:
JOSEPH AND ANOTHER
DATE OF JUDGMENT10/01/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
MANOHAR SUJATA V. (J)
CITATION:
1995 AIR 719 1995 SCC (2) 159
1995 SCALE (1)149
ACT:
HEADNOTE:
JUDGMENT:
ORDER
Admittedly, the execution petition was filed by Rajeshwari
Amma, Sukumara Pillai and Neelamma Pillai, the legal
representatives of the deceased Kolappa Pillai. After the
execution petition was ordered by the Court of District
Munsif at Kuzhithurai in EP No. 274 of 1981 in OS No. 14 of
1961 dated 12-8-1981, the respondents carried it in revision
to the High Court. Therein only the deceased Kolappa
Pillai, Rajeshwari Amma and Sukumara Pillai were impleaded
as respondents omitting Neelamma Pillai. In other words,
the order of the executing court directing delivery of
possession which was executed and possession taken in favour
of the three persons was challenged against only two
persons. The order in favour of third person, namely,
Neelamma Pillai became final. The execution petition being
of the same property which is undivided between the decree-
holders, the question emerges whether the High Court was
right in allowing CRP No. 2747 of 1982 by order dated 1-7-
1985 as against the unimpleaded respondent and whether that
order also comes in aid to the appellants. On going through
the record we find that there is some force in the arguments
of Shri G. Viswanatha Iyer, the learned Senior Counsel for
the appellants. Since the order of delivery-of possession
in favour of the decree-holders is common and inseparable
and since it has become final as against Neelamma, the High
Court was not right in setting aside the order as against
the appellants. No doubt, as rightly pointed out by the
learned counsel for the respondents this contention was not
raised before the High Court. But being a question of law,
it is open to be raised- and can be considered as the order
is an inseparable one. Since the order against Neelamma had
attained finality, we think that the High Court was not
right in reversing the order of the executing court as
against two respondents. The appeal is accordingly allowed.
No costs.
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