The execution court erred in dismissing the execution petition on the ground that the name of a third party is seen in the encumbrance certificate. The decree holder points out that the third party is none other than the mother-in-law of the judgment debtor. The decree holder also asserts that the transaction in favour of the mother-in-law of the judgment debtor is fraudulent. This is because the transfer by the judgment debtor was purportedly made after the issue of notice preceding the suit by the decree holder.
2. The decree holder undertakes to implead the mother- in-law of the judgment debtor also in the execution proceedings. The Court below shall hear the mother-in-law - Rajeswari Santhan - and consider the claim if any put by her. Such an enquiry is contemplated in law as held in Rajan v. Jayashree Nayar [2010(1) KLT 142].
O.P.(C) Nos. 478 of 2013 & 2 4382 of 2013
3. The execution court also erred in not restoring the execution petition so dismissed. The proceedings ought to have been taken to a logical end after considering the claim if any raised by Rajeswari Santhan also.
4. Resultantly the orders dated 18.12.2012 and 10.07.2013 in E.P. No. 22/2008 in O.S. No. 27/2001 are set aside. The Court of the Subordinate Judge of Kottarakara is directed to expedite the execution proceedings within a period of three months.
The original petitions are allowed. No costs.
V.CHITAMBARESH JUDGE DCS