IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 Con.Case(C).No. 762 of 2011(S) ------------------------------ AGAINST JUDGMENTS IN OS.591/2009 of PRL.M.C., KOTTAYAM AND OS.563/2009 of ADDL.M.C.,KOTTAYAM .................... PETITIONER/PLAINTIFF: --------------------------- SOOSY GEORGE ,W/O.GEORGE ISSAC, AGED 67, MANAGING PARTNER OF M/S CONNOISSEUR RESIDING AT PALATHINKAL HOUSE, T.B.ROAD KOTTAYAM KOTTAYAM VILLAGE,KOTTAYAM DISTRICT. BY ADV. SRI.JOSEKUTTY MATHEW RESPONDENT/DEFENDANT: ------------------------------ MRS.MARY ROY, W/O.RAJIB ROY,AGED 69 RESIDING AT PALLIKOODAM HIGH SCHOOL VADAVATHOOR PO KOTTAYAM 686 010, KOTTAYAM DISTRICT. THIS CONTEMPT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Con.Case(C).No. 762 of 2011(S) APPENDIX PETITIONER'S EXHIBITS: ANNEXURE I : TRUE COPY OF THE CERTIFICATE DATED 15.10.2007 ISSUED BY THE COMMERCIALTAX OFFICE KOTTAYAM IN THE NAME OF THE PETITIONER. ANNEXURE II : TRUE COPY OF THE RENT DEED DATED 30.03.1979. ANNEXURE III: TRUE COPY OF THE PLAINT IN OS NO.591/2009 BEFORE THE PRINCIPAL MUNSIFF COURT KOTTAYAM DATED 01.11.2009. ANNEXURE IV : TRUE COPY OF RENT DEED DATED 15.12.1970. ANNEXURE V : TRUE OCPY OF THE PLAINT IN OS NO.563/2009 BEFORE THE ADDITIONAL MUNSIFF COURT KOTTAYAM DAED 02.11.2009. ANNEXURE VI : TRUE COPY OF THE FINAL DECREE IN OS NO.323/1988 BEFORE THE PRINCIPAL SUB COURT KOTTAYAM DATED 18.12.2006. ANNEXURE VII: TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.563/2009 DATED 02.02.2010. ANNEXURE VIII: TRUE COPY OF THE OCUNTER AFFIDAVIT IN OS.NO.591/2009 DATED 23.03.2010. ANNEXURE IX : CERTIFIED COPY OF THE JUDGMENT IN OS NO.591/2009 DATED 17.08.2010. ANNEXURE X : CERTIFIED COPY OF THE DECREE IN OS NO.591/2009 DATED 17.08.2010. ANNEXURE XI : CERTIFIED COPY OF JUDGMENT AND DECREE IN OS. NO.563/2009 DATED 09.07.2010. ANNEXURE XII: TRUE COPY OF THE WRIT UP IN MATHRUBHOOMI AZCHAPPATHIPPU DATED 21.11.2010. ANNEXURE XIII: TRUE COPY OF THE EXECUTION APPLICATION IN E.A. NO.645 IN OS NO.323/1988 DATED 23.10.2010. ANNEXURE XIV : CERTIFIED COPY OF THE DELIVERY ORDER IN OS NO.323/1988 DATED 16.08.2010. /TRUE COPY/ PA TO JUDGE J. CHELAMESWAR, C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- Cont.Case (C).No. 762 of 2011 ---------------------------------------------- Dated this the 11th day of August, 2011 JUDGMENT Ramachandra Menon, J. Whether the delivery effected pursuant to an order in execution of the decree passed by the competent Civil Court, by deputing Amin amounts to Contempt of Court in respect of an 'undertaking' stated as given by the beneficiary/respondent/ decree holder on the original side, stating that she will not evict the occupant unless otherwise than due process of law, is the issue involved. 2. The case has got a long history. The respondent herein was instrumental in changing the law, especially with regard to Christian succession, whereby equal rights were conferred by the Apex Court on all the children of an intestate Christian (equally among the male as well as the female members of the family) as per the verdict in Mary Roy v. State of Kerala (AIR 1986 SC 1011). 3. Pursuant to declaration of law, the respondent herein approached the concerned Civil Court by filing O.S.323 of 1988, Cont.Case.762/11 2 wherein a preliminary decree was passed in her favour. This was followed by the final decree, as borne by Annexure-VI produced along with this petition. Later, the decree was sought to be executed by filing execution petition before the concerned Court. In the meanwhile, the petitioner herein, who is exposed as the sister-in-law of the respondent came forward, putting up a contention, stating that she was the tenant in the premises, and that she was doing the business for quite long and was not liable to be evicted. Two separate suits were filed before the concerned Courts as O.S.Nos. 591 of 2009 and 563 of 2009 in respect of two different properties. The respondent herein gave an undertaking before the Court that she was a law abiding citizen and would not take possession of the properties concerned, otherwise than under due process of law. Recording the said undertaking, both the suits were dismissed as per Annexures-IX and XI verdicts dated 17.8.2010 and 9.7.2010 respectively. The case of the petitioner is that the undertaking given stands flouted and the properties have been taken delivery of, by the respondent, with the help of the Amin and the Police force, which amounts to the offence punishable under Section 12 of the Contempt of Courts Act and hence is sought to be proceeded with. Cont.Case.762/11 3 4. Heard the learned counsel for the petitioner at length. 5. On going through the materials on record, it is clearly revealed that the suit filed by the petitioner for permanent prohibitory injunction as O.S.No.591 of 2009 was dismissed by the Civil Court on merits after arriving ata finding that the plaintiff was not entitled to have a decree of injunction as prayed for (paragraph 11 of Annexure IX). With regard to the claim put up by the petitioner/plaintiff therein, it is observed in para 10 as follows: “10. It is to be noted that by no stretch of imagination, it can be assumed that the defendants who have waited from 1988 onwards after filing the partition suit will take law into their hands and take forcible possession of the property, when an order from the court to effect delivery alone is sufficient to obtain possession of the property. It is to be noted that if the Amin goes to effect delivery pursuant to the order of the court and the plaintiff is in possession of the property she can file obstruction petition and her claim can be considered by the execution court.” Obviously, as per Annexure XIV order dated 16th August, 2010 in E.P.No.129 of 2008 in O.S.No.323 of 1988, the Execution Court ordered delivery warrant to be issued, to take delivery on 13.9.2010. It was pursuant to the said order that Amin of the Court was deputed to give effect to the order. The Amin took Cont.Case.762/11 4 delivery of the property with the help of the Police and the same was handed over to the respondent herein. 6. From the above, it is clear that the respondent came to be in possession of the properties as given by the Amin deputed by the Court, pursuant to Annexure-XIV order dated 16.8.2010. It is also relevant to note that the petitioner before this Court happens to be the wife of the defendant/judgment debtor in the concerned Suit for partition/Execution Petition. There is no case for the petitioner that the petitioner was a party to the proceedings which culminated in Annexure VI. She is now claiming the benefit in a different capacity, being the tenant of her husband, who was the judgment debtor, against whom the delivery is ordered by the Execution Court vide Annexure XIV. This being the position, if at all the petitioner is aggrieved in any manner, it is quite open for her to have approached the Execution Court, after raising the objection, as observed in paragraph 10 of Annexure-IX verdict passed by the Civil Court. The materials on record also reveal that the petitioner has already approached the Execution Court by filing Annexure-XIII petition dated 23.10.2010, seeking for appropriate relief. Cont.Case.762/11 5 7. We do not find any violation of undertaking given by the respondent and there is no contumacious act, so as to constitute any offence under Section 12 of the Contempt of Courts Act to be proceeded with. There is absolutely no merit in the petition. The same is dismissed accordingly. Since no notice has been issued to the respondent, the Registry is directed to forward a copy of this Order to the respondent, for information and to bring it to the notice of the concerned Court/s, if/when necessitated. J.CHELAMESWAR, CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs