http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2