IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 22519 of 2009(O) ------------------------------------ OS.562/2002 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): ------------------------- 1. SHYLAJA, W/O.LATE SOMAN, AGED 50 YEARS, KOOTHAKKARAYIL (H), KATTOOR MURI, KALAVOOR VILLAGE ALAPPUZHA. 2. ARUN @ KANNAN S/O.LATE SOMAN, AGED 28 YEARS KOOTHAKKARAYIL (H), KATTOOR MURI, KALAVOOR VILLAGE ALAPPUZHA. 3. ANIL, S/O.LATE SOMAN, AGED 25 YEARS KOOTHAKKARAYIL (H), KATTOOR MURI, KALAVOOR VILLAGE ALAPPUZHA. 4. ANITHA D/O. LATE SOMAN, AGED 23 YEARS KOOTHAKKARAYIL (H), KATTOOR MURI, KALAVOOR VILLAGE ALAPPUZHA. BY ADVS. SMT.C.G.BINDU SMT.C.G.AJITHA SMT.D.SARITHA RESPONDENT(S): --------------------- EMELIN @ C.S.THANKAKUTTY D/O.KANDANATTU SEBASTIAN, JAYANIVAS, KARUMACHERIYIL, ARTHUNGAL, ALAPPUZHA. PIN. 688344. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22519 OF 2009 -------------------------- Dated this the 7th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) A writ in the nature of certiorari or other appropriate writ be issued to call for and quash all the records leading to Ext.P9 order dated 17/07/2009 and the subsequent order for the delivery of the schedule property. ii) To issue a writ in the nature of mandamus or other appropriate writ, directing the court below to desist from the execution of ex- parte decree initiated under E.P No.313/2007 in O.S 562/2002. W.P.(C).No.22519 OF 2009 Page numbers iii) To issue appropriate writ or direction, directing the court below to conduct thorough enquiry in Ext.P11 application filed under Order 21 Rule 97 C.P.C on the basis of Exts.P12 to P17 of the petitioners. iv) To issue appropriate order or direction to stay the execution till the disposal of petitioner's Ext.P6 application submitted in O.S 562/2002. v) To grant such other orders and direction which are deemed just and necessary according to the facts and circumstances of the case. 2. Petitioner is the judgment debtor in E.P No.313/2007 in O.S No.562/2002 on the file of the Additional Munsiff Court Alappuzha and the W.P.(C).No.22519 OF 2009 3 respondent is the decree holder / plaintiff. In the above suit decree for fixation of boundary and injunction both mandatory and prohibitory were granted in favour of the decree holder. The decree was passed exparte and admittedly the judgment debtor moved an application under Order 9 Rule 13 C.P.C to set aside that decree. That application, it is stated, was dismissed for default and petitioner has filed another application for restoration of that application and it is pending consideration. Meanwhile the decree holder has taken steps for executing the decree. Ameen was deputed by the court to deliver the property relating to the decree of mandatory injunction passed in the suit. It appears that there was some obstruction when the Ameen visited the property and a report was filed before the court. The decree holder then filed a fresh petition for removal of the obstruction and delivery of the property. W.P.(C).No.22519 OF 2009 4 Petitioner / judgment debtor also moved an application under Order 21 Rule 29 of C.P.C for stay of the proceedings on the basis of the application moved for restoring the previous application filed under order 9 Rule 13 of C.P.C. which has been dismissed for default. The court below on the application of the decree holder passed a fresh order for delivery of the property. The order so passed by the execution court is challenged in the writ petition seeking the afore mentioned reliefs without producing the copy of the order, invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent / W.P.(C).No.22519 OF 2009 5 decree holder is necessary and it is dispensed with. The learned counsel for the petitioner / judgment debtor submitted that the fresh order passed by the court below for delivery of the property without considering the application moved by the petitioner under Order 21 Rule 29 of C.P.C for stay of the proceedings in view of the pendency of her application for restoring the application moved under Order 9 Rule 13 of C.P.C is erroneous and unsustainable under law. Further submissions of the counsel is that, when an application had been moved by the decree holder for removal of the obstruction the execution court has to conduct an enquiry as contemplated under Order 21 Rule 97 of C.P.C and then only it is empowered to pass a fresh order of delivery. Both grounds of attack raised by the learned counsel to impeach the propriety and correctness of the order passed by the execution court to deliver the property, I find there is no W.P.(C).No.22519 OF 2009 6 merit. The execution court is bound to execute the decree and it cannot abdicate its jurisdiction from doing so for reasons which cannot be sustained under law. Judgment debtor has moved an application for restoring the application for setting aside the exparte decree which had been dismissed for default is no ground enabling the execution court to grand a stay of the execution proceedings under Order 21 Rule 29 of C.P.C as desired by the judgment debtor. Similarly where the decree holder seeks for removal of the obstruction, as the an Ameen deputed to deliver the property was obstructed by the judgment debtor or some other person, it does not follow that the application of the decree holder should be enquired into or adjudicated upon as an application under Order 21 Rule 97 of C.P.C . Such an application has to be considered as one falling under Order 21 Rule 35 of C.P.C requesting the execution court to W.P.(C).No.22519 OF 2009 7 pass an order of delivery afresh, if necessary with appropriate orders for removal of the obstruction. So much so, I do not find any merit in the writ petition and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv