Peediyakkal Ravulla alias Mullabi vs Valiakath Imbichikoya and Another

Basheer Ahmed Sayeed, J.—The simple point raised in this Civil Revision Petition is that there could be no appeal against an order passed

in a claim petition by the executing Court. A decree was obtained by the 1st respondent, in S.C. No. 97 of 1949 on the file of the District

Munsiff''s Court, Quilandy and execution of the decree was sought to be laid against the properties of the Karnavan, 2nd respondent herein, on the

allegation contained in the decree that the person against whom the decree was passed personally also represented as karnavan of the tarwad. At

the stage of the execution of the decree since the person against whom a personal decree was passed did not represent the tarwad and was not the

karnavan of the tarwad against whom execution was sought a claim petition was filed. The claim petition was heard by the executing Court which

was also the Court which passed the decree. After hearing the claim petition the executing Court passed an order that the tarwad property was not

liable to be attached. Since the person against whom the decree was passed personally did not represent the tarwad the decree-holder ought to

have sought to set aside that order by filing a suit. Instead of that, it appears that he had taken the matter in appeal before the learned Subordinate

Judge, Tellicherry. The learned Subordinate Judge without considering the question as to whether the appeal was competent, went into the

question of the jurisdiction of the executing Court to hear the claim petition and set aside the order on the claim petition. In my opinion, the learned

Judge was not correct in the approach he did with regard to the appeal before him. He should have directed the decree-holder to file a suit to set

aside the claim order and dismissed the appeal in limine. Instead of doing so he has passed a wrong order and Mr. Sridharan appearing for the

decree-holder first respondent, in this revision petition wanted me to go through that order in extenso. A perusal of the first few paragraphs of the

judgment of the learned Subordinate Judge is sufficient to hold that the learned Subordinate Judge had erred in not having dismissed the appeal as

being not competent. The legal objection raised by the learned Counsel for the petitioner that there is no right of appeal against an order passed in

a claim petition must be upheld. This Civil Revision Petition is, therefore, allowed but in the circumstances there will be no order as to costs.