Shenoy Vs. Kshemavathy & Ors.  INSC 1358 (31 July 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO. 4974 OF 2009 (Arising out of SLP(C)No.
19115/2007) Vasudev Shenoy ...Appellant(s) Versus Kshemavathy & Ors.
appellant herein is the decree holder arising out of civil suit No. O.S.
83/1997. Consequent to the decree 19 cents, of land belonging to the
respondents herein was purchased by the appellant in a Court auction on 4th
April, 2000. The possession of the property was delivered to the appellant on
30th January, 2001 by the Court officials with Police help as the respondents
had obstructed the delivery. The respondents, however, on the very next day
i.e. 31st January, 2001 re-possessed themselves of the property by breaking
open the locks.
respondents thereafter filed civil suit No.141/2001 in the Court of the
Sub-Judge, Cochin and obtained a temporary injunction against the appellant -2-
who was now the owner of the property. The suit was dismissed on 18th June,
2005 with the observation that the plaintiff (that is the respondent herein)
had absolutely no right whatsoever to the property.
been contended by the learned counsel for the respondents today that an appeal
has been filed against the judgment and decree dated 18th June, 2005. The
appellant in the meanwhile took several steps to repossess themselves of the
property but remained unsuccessful. Ultimately, he filed writ petition No.
15525/2006 in the High court seeking the relief of possessin. This petition was
disposed of on 6th July, 2006 with the direction that the appellant should
approach the civil court. The appellant thereafter filed an application under
Sec.151 of the C.P.C. in O.S.83/1997 in the Court of the Munsiff, Cochin for
re-delivery of the property in question. This application was dismissed on 7th
June, 2007 on the ground that such an application under the said provision did
not lie. The appellant thereupon preferred writ petition No. 23954/2007 against
the order of the civil Court and this too was dismissed on 7th August, 2007
with the following observations:
"Inherent power of the court under Section 151 CPC cannot be invoked by
the executing Court after recording the delivery, to deliver the property once
again to the decree holder or auction purchaser. Remedy to the writ petitioner
is institute a suit for recovery of possession."
against this order that the present appeal has been filed.
heard learned counsel for the parties and gone through the record. The facts as
stated above, are not disputed. In these facts we are of the opinion that the
respondents herein have no justification legal or in equity in holding on to
the property and that they were guilty of taking the law into their hands when
they repossessed themselves on 31st January, 2001. Even the civil suit filed by
them seeking a temporary injunction has been dismissed and the only argument of
the learned counsel for the respondents is that an appeal is pending before the
High Court. Be that as it may, the facts clearly show that the conduct of the
respondents is completely unacceptable and we are indeed surprised that High
Court has not moulded the relief to the appellant.
learned counsel for the respondents has, however, argued that the appellant had
several -4- applications for the execution of the decree and filed repeated
applications under 151 of the C.P.C. as well and as such the present
proceedings were not maintainable and the remedy before the appellant was to
file another civil suit as observed by the High Court.
not go into this suspicion. We are of the opinion that the Court should
exercise its jurisdiction under Art.142 of the Constitution in the facts of the
case. We, thus, direct that the appellant should be put back in possession of
the property within four weeks from today positively and that all help,
including police help, that is required shall be provided. The appellant will
also have his costs which are determined as Rs.50,000/-.
appeal is allowed in the above terms.
................ .J. (HARJIT SINGH BEDI) .
..................J. (J.M. PANCHAL)
July 31, 2009.
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