IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 WP(C).No. 12089 of 2010(O) -------------------------- E.A.139/2009 AND EA 140/09 IN EP.25/2000 IN OS.188/1997 of MUNSIFF'S COURT,ATTINGAL .................... PETITIONER(S): ------------------------- 1. LAKSHMANAN, S/O.KRISHNAN, KARTHIKA, PUTHUVAL PUTHENVEEDU, PALLICHAVEETU MURI, PALLIPURAM VILLAGE, THIRUVANANTHAPURAM. 2. SAROJINI, W/O.LAKSHMANAN, KARTHIKA, PUTHUVAL PUTHENVEEDU, PALLICHAVEETU MURI, PALLIPURAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.K.C.ELDHO RESPONDENT(S): --------------------------- MOHANAN, S/O.SADANANDAN, PUTHUVAL PUTHEN VEEDU, PALLICHAVEETU MURI, PALLIPURAM VILLAGE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12089/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER IN CRP NO.849 OF 2007 DTD. 12/03/2007 OF THIS HON'BLE COURT. P2: COPY OF THE KACHIT AND REPORT EVIDENCING THE DELIVERY EFFECTED AND PUTTING THE PETITIONERS IN POSSESSION OF THE PROPERTY. P3: COPY OF THE WRIT PETITION IN WPC.NO.15350 OF 2009. P4: COPY OF E.A.NO.139 OF 2009 IN EP.NO.25 OF 2000 IN O.S.NO.188 OF 1997 ON THE FILE OF MUNSIFF'S COURT, ATTINGAL. P5: COPY OF E.A.NO.140 OF 2009 IN EP.NO.25 OF 2000 IN O.S.NO.188 OF 1997 ON THE FILE OF MUNSIFF'S COURT, ATTINGAL. P6: COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR IN THE EXECUTION PROCEEDINGS FOR DELIVERY OF THE DECREE SCHEDULE PROPERTY. P7: COPY OF THE PETITION E.A.NO.45 OF2010 FILED BY THE PETITIONERS BEFORE THE EXECUTION COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------- W.P (C) No. 12089 of 2010 -------------------------- Dated this the 9th April, 2010 J U D G M E N T Limited prayer in this writ petition is for a direction to the Munsiff's Court, Attingal to consider and dispose of E.A No.139/2009 stated to have been filed by the petitioner in E.P. No.25/2000 in O.S No.188/1997. 2. Petitioners are the decree holders in O.S No.188 of 1997. The suit was one for declaration of title and possession. The suit was decreed on 31.8.1999. Respondent had filed O.S.No.408 of 2002 seeking for declaration that the decree schedule property in OS 188/1997 is not the plaint schedule property. The suit was dismissed by the trial court. An appeal filed by the respondent did not succeed and the matter has become final. Therefore, the contention is based on the question of identity of the decree schedule property. Petitioner has moved Execution Petition as E.P. No.25 of 2000 in O.S No.188 of 1997. Objections were taken by the judgment debtors. On the basis of the contentions, a Commission was appointed and he submitted plan and report prepared with the W.P (C) No. 12089 of 2010 2 assistance of the Taluk Surveyor. Property covered by the decree was identified and on the basis of the commission report, the execution court posted the case for delivery of the property. Respondent challenged the said order in CR.P.No.849/2007 before this Court against the order of delivery and this Court by judgment dated 12.3.2008 set aside the order passed by the Execution Court and directed the Execution Court to provide an opportunity to the respondent to substantiate his contentions on the identity of the property. Copy of the order in C.R.P. No.849/2007 is produced as Ext.P1. In pursuance of Ext.P1 respondent produced documents in support of his contentions regarding the identity of the property. After hearing both the parties, delivery of the property was ordered. Delivery was effected on 4.6.2009 and petitioner took possession of the property as per Ext.P2 Kaichit. On the previous day of effecting delivery, the respondent preferred writ petition before this Court as W.P. (C) No.15350/2009. Later, writ petition was dismissed as withdrawn at the instance of the respondent. 3. Suffice to say that, later the respondent preferred a petition under Section 47 of the Code of Civil Procedure W.P (C) No. 12089 of 2010 3 for re-delivery of the property delivered as per Ext.P2 through the court. Copy of the said petition is produced as Ext.P5. Petitioners point out that delivery was effected after identification of the property. Therefore, there is no ambiguity or irregularity in the delivery effected as per Ext.P2 kaichit. It is after fulfilling the enquiry, the property was delivered. 4. Petitioners main complaint is that even though they had filed objections to the petition filed by the respondent and also sought for a hearing of the preliminary issue regarding the petition, that has not been done by the court below. It is also pointed out that overlooking the petition, the court below has appointed a commission to file a report and plan with the aid of a Taluk Surveyor. 5. Petitioners pointed out that issues have been already settled. There is also a commission report identifying the property which was delivered on 4.6.2009. To the decree in O.S 188/97 no objection has been taken so far. It is also pointed out that petitioners filed E.A No.45/2010 before the Execution Court seeking a direction to consider the maintainability of E.A No.139 of 2009. It is stated that until W.P (C) No. 12089 of 2010 4 further orders are passed on E.A No.139/2009, a stay of further proceedings be issued. 6. In the light of the order that is proposed to be passed, it is felt that notice to respondent is unnecessary. 7. Considering the averments, the request made by the petitioners seem to be just and reasonable. Their only claim is that they have questioned the maintainability of the petition and it is stated that no re-delivery shall be made. In the result, there will be a direction to the Munsiff's Court, Attingal to take up E.A No.139/2009 and 140 of 2009 in E.P. No.25 of 2000 in O.S No.188 of 1997 and dispose of the petitions, as early as possible, at any rate, within a period of one month from the date of re-opening of the Courts after summer vacation. Till orders are passed on the above petitions, further proceedings in the applications shall be kept in abeyance. The Writ Petition is disposed of as above. P.BHAVADASAN, JUDGE ma W.P (C) No. 12089 of 2010 5 W.P (C) No. 12089 of 2010 6