IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 OP(C).No. 2540 of 2011(O) ------------------------------------ OS.11/2010 of SUB COURT, THIRUVALLA .................... PETITIONER: -------------------- MRS.ANNIE MATHEW, W/O.MATHEW GEORGE, THIRUVILAKALAYIL, PERUMTHURUTHY P.O, PERUMTHURUTHI MURI, KAVUMBHAGOM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.T.K.ANANDA KRISHNAN, SRI.JELSON J.EDAMPADAM. RESPONDENT(S): ------------------------ 1. PRASAD KUMAR, THURUTHIYIL VEEDU, THURUTHIKKARA MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, REPRESENTED HIS POWER OF ATTORNEY HOLDER, VIJAYACHANDRA KURUP, SREE LAKSHMI HOUSE, THURUTHIKKARA MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DIST-689 645. 2. RAMESH BABU, THURUTHIYIL VEEDU, THURUTHIKKARA MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT - 689 645. 3. VIJAYAKUMAR, THURUTHIYIL VEEDU THURUTHIKKARA MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, VIJAYACHANDRA KURUP, SREE LAKSHMI HOUSE, THURUTHIKKARA MURI, KALLOOPPARA VILLAGE,MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT-689 645. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 2540 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE FINAL JUDGMENT DATED 31/05/1985 IN .A. NO.346/1991 IN O.S. NO.50/1970. EXT.P2: COPY OF THE EXECUTION PETITION NO.41/2008 IN O.S. NO.50/1970. EXT.P3: COPY OF THE OBJECTION DATED 15/03/2011 FILED BY THE PETITIONER TO EXT.P2. EXT.P4: COPY OF THE AFFIDAVIT AND THE ACCOMPANYING PETITION SEEKING TO ACCEPT THE OBJECTION. EXT.P5: COPY OF THE PLAINT IN O.S. NO.11/2010 OF THE SUB COURT, THIRUVALLA. EXT.P6: COPY OF THE APPLICATION ALONG WITH THE AFFIDAVIT FILED BY THE PETITIONER. EXT.P7: COPY OF THE WRITTEN STATEMENT FILED BY THE POWER OF ATTORNEY HOLDER ON BEHALF OF THE RESPONDENTS. EXT.P8: COPY OF THE AFFIDAVIT AND THE ACCOMPANYING APPLICATION FILED BY THE PETITIONER SEEKING STAY OF THE EXECUTION PROCEEDINGS. EXT.P9: COPY OF THE OBJECTION FILED BY THE POWER OF ATTORNEY HOLDER OF THE RESPONDENTS 1 AND 3, OPPOSING THE APPLICATION FOR STAY OF THE EXECUTION PROCEEDINGS. EXT.P10: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER AND THE APPLICATION ACCOMPANYING THE SAME. EXT.P11: COPY OF THE INTERIM APPLICATION FILED BY THE PETITIONER IN O.S. NO.11/2010 FOR ADVANCING THE CASE TO 26/07/2010 FROM 13/08/2010. EXT.P12: COPY OF THE AFFIDAVIT IN LIEU OF THE CHIEF EXAMINATION IN O.S. NO.11/2010. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2540 of 2011 ==================================== Dated this the 04th day of August, 2011 J U D G M E N T The 10th Judgment debtor in E.P. No.41 of 2008 in O.S. No.50 of 1970 of the court of learned Sub Judge, Thiruvalla is the petitioner. That was a suit for partition where a final decree was passed as early as on 31.05.1995 as per order on I.A. No.346 of 1991. Final decree was sought to be executed as per E.P. No.41 of 2008, respondents 1 to 3 claiming 3/6 shares in the property. While so, petitioner filed O.S. No.11 of 2010 against respondents 1 to 3 and others to set aside the decree in O.S No.50 of 1970 to the extent it related to the suit property. Petitioner also prayed for injunction against execution in O.S. No.50 of 1970 vide I.A No.100 of 2010. Grievance of petitioner is that though E.P in O.S. No.50 of 1970 is barred by limitation that question is not being heard by the executing court in spite of that petitioner filed Ext.P3, application for the said purpose. Hence a direction is sought for considering maintainability of E.P. No.41 of 2008. Learned counsel submitted that decision on the execution petition will have a bearing on the decision in O.S. No.11 of 2010 O.P(C) No.2540 of 2011 -: 2 :- 2. I find that petitioner who filed O.S. No.11 of 2010 is the 10th judgment debtor in O.S.No.50 of 1970. If petitioner has filed any application for hearing maintainability of E.P. No.41 of 2008 it is open to the petitioner to request the executing court to decide that question. A direction from this Court in that regard is not necessary. Resultantly, leaving petitioner to request the executing court to dispose of the petition, this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv