IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 OP(C).No. 1207 of 2010(O) ------------------------------------- [E.P. NO. 82/05 IN O.S. 15/98 OF SUB COURT, TRIVANDRUM] ........ PETITIONER/JUDGMENT DEBTOR/5TH DEFENDANT: ---------------------------------------------------------------------------- VIMALA NETTO, W/O. LATE C.R.NETTO, SEA WAVE, PUTHENTHOPE, MENAKULAM, THIRUVANANTHAPURAM. BY ADVS. SRI.SUMAN CHAKRAVARTHY, SRI. JOSEPH RAJESH K.A. RESPONDENTS/DECREE HOLDER,PLAINTIFF/& DEFENDANTS 1-4/JD 1 TO 4: --------------------------------------------------------------------------------------------------------------- 1. MELLISON ANNIE RUDOLF NETTO, 804, TASEK MERADON, JALAM TOTONG, BANDAVSERI BEGAWAN, BRUNEI DARUSSLAM. 2. LILLY FERNANDEZ @ LILLY NETTO, NO.38/1-B, MEANEE AVENUE ROAD, CIVIL STATION, BANGALORE-560 042. 3. HANSEN STAUISLAUS NETTO, S/O. LILLY FERNANDEZ, NO.38/1-B, MEANEE AVENUE ROAD, CIVIL STATION, BANGALORE-560 042. 4. HERMAN NETTO, S/O. LILLY FERNANDEZ, NO.38/1-B, MEANEE AVENUE ROAD, CIVIL STATION, BANGALORE-560 042. 5. JASMINE NETTO, D/O. LILLY FERNANDEZ, NO.38/1-B, MEANEE AVENUE ROAD, CIVIL STATION, BANGALORE-560 042. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOMAS P. JOSEPH, J ----------------------------------- O.P No.1207 OF 2010 -------------------------------------------------------- DATED THIS THE 20TH DAY OF DECEMBER, 2010 JUDGMENT Judgment Debtor No.5 in E.P No.82/2005 in O.S No.15/1998 of the court of learned Addl. Sub Judge – II, Thiruvananthapuram is the petitioner. The prayer in this petition is to direct learned Sub Judge to issue copy of order allowing I.A No.7255/2010 and copies of I.A Nos.7255/2010 and 7256/2010 in O.S No.15/1998 as prayed for in application No.5369/2010 and to keep in abeyance delivery proceedings in E.P.No.82/2005 to enable petitioner challenge the order allowing amendment and correction of decree vide I.A No.7255/2010. 2. It is contended that the Will and the plaint did not refer to the 1.03 acres in R.S. 82/2006 in Menamkulam Village (in block No.10) belonging to the petitioner and hence petitioner did not contest the suit. In execution of the decree, petitioner contended that the property is not identifiable and applied for the issue of a commission. That application was dismissed and the Village Officer was directed to assist the Amin to effect O.P(C) No.1207 of 2010 -: 2 :- delivery of property. Later, the order on the application for issue of commission was reviewed by the executing court and petitioner deposited bata. At that stage, counsel for respondent No.1- decree holder submitted in the executing court that decree schedule was amended (incorporating property over which petitioner claims right and referred to above). It is the case of petitioner that he was not given notice of the application for amendment and that he did not contest the suit as neither the Will nor the plaint schedule as originally filed contained property over which petitioner is claiming title. 3. According to the learned counsel, amendment was done in a clandestine manner behind the back of petitioner. Petitioner wants to challenge the order allowing amendment. If in the meantime, property over which the petitioner claims title and possession is delivered, petitioner will be put to irreparable hardship. 4. Having regard to the facts and circumstances, I am inclined to issue direction as prayed for and to direct that in the meantime property over which the petitioner is claiming title and possession shall not be delivered over. O.P(C) No.1207 of 2010 -: 3 :- Resultantly this, petition is disposed of in the following lines. (i)Learned Addl. Sub Judge, Thiruvananthapuram is directed to issue copy of order on I.A No.7255/2010 and copies of I.A Nos.7255/2010 and 7256/2010 in O.S No.15/1998 as applied for in application No.A.5369/2010 as early as possible and at any rate on or before 06.01.2011. (ii)It is directed that delivery proceedings in E.P.No.82/2005 to the extend it related to the 1.03 acres in block No.10, R.S No.82/2006 of Menakulam will stand in abeyance for a period of 7 (seven) days from the date notified for issue of copy of the order and application referred to above. THOMAS P. JOSEPH JUDGE. ss/-