IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 11684 of 2009(O) -------------------------- OS.290/1990 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): --------------- SHYLAJA,D/O.ELSY,RODARUKU VADAKKATHU PUTHEN VEEDU,VIRALIVILA VADAVOORKONAM,AYIRAYIL DESOM,KARODE VILLAGE. BY ADV. SRI.R.GOPAN RESPONDENT(S): --------------- 1. NJANAMANY NADAR,S/O.NADANKUTTY NADAR, THEKKETHATTU,VADAKKATHUPUTHEN VEEDU,VIRALIVILA, KARODE DESOM,KARODE VILLAGE,NEYYATTINKARA, AYIRAYIL.PO. 2. SWARNAM,D/O.ROSSIL NADATHI, DO. DO. 3. RAJAMONY,S/O.NADANKUTTY NADAR, DO. DO. 4. DANIEL NADAR,S/O.KOCHUMMINI NADAR, DO. DO. 5. SARADA, D/O.RAJAPPAN NADAR,DO. DO. 6. WILSON, DO. DO. 7. JOHNSON, S/O.RAYAPPAN NADAR, DO. DO. 8. SUNDARAMONY, S/O.RAYAPPAN NADAR,DO. DO. 9. JAYAMOHAN @ PEETHAMBARAN,S/O.RAMAN PANICKER,CHAVALVILA,ERICHELLOOR DESOM,CHAVALVILA, ERICHELLOOR DESOM, KARODE VILLAGE,NEYYATTINKARA TALUK,AYIRAYIL.PO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON 25/05/2009 DELIVERED THE FOLLOWING: WPC.11684/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.293/1990 OF THE MUNSIFF'S COURT, NEYYATTINKARA. EXT.P2: COPY OF THE FINAL DECREE AND PLAN APPENDED TO THE FINAL DECREE DATED 31.3.1997. EXT.P3: COPY OF THE E.P.NO.572/2004 IN O.S.NO.293/1990 BEFORE THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 4.12.2004. EXT.P4: COPY OF E.A.NO.721/2007 IN E.P.NO.57/2004 IN O.S.NO.293/1990 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 20.8.2007. EXT.P5: COPY OF THE MEMORANDUM OF APPEAL IN A.S.NO.69/2009 OF THE SUB COURT, NEYYATTINKARA DATED 2.4.2009. EXT.P6: COPY OF I.A.NO.687/2009 IN A.S.NO.69/2009 OF THE SUB COURT, NEYYATTINKARA DATED 2.4.2009. EXT.P7: COPY OF THE I.A.NO.688/2009 IN A.S.NO.69/2009 OF THE SUB COURT, NEYYATTINKARA DATED 2.4.2009. EXT.P8: COPY OF THE A DIARY DATED 29.7.2008 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA. EXT.P9: COPY OF B DIARY IN E.P.NO.572/2004 IN O.S.NO.293/1990 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA. EXT.P10: COPY OF E.A.NO.305/2008 IN E.P.NO.572/2004 OF THE 1ST ADDITIONAL MUNSIFF COURT, DATED 27.3.2009. EXT.P11: COPY OF THE ORDER DATED 2.4.2009 IN E.P.NO.572/2004 IN O.S.NO.293/1990 OF 1ST ADDL. MUNSIFF COURT, NEYYATTINKARA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.11684 OF 2009 (O) ----------------------------------- Dated this the 25th May, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. issue a writ of certiorari or order and quash/set aside Ext.P11 order. ii. issue an order or direction to the 1st Additional Munsiff Court, Neyyattinkara to keep in abeyance Ext.P11 order till the disposal of I.A.No.688/2009 in A.S.No.69/2009 of the Sub Court, Neyyattinkara. iii. such other writ, direction or order this Honourable Court deem fit and proper for the circumstances in this case. Petitioner, who unsuccessfully resisted the execution of a decree passed in a suit for partition, claiming independent title and possession over a portion of the suit property, under WPC.11684/09 2 the present writ petition seeks for an order to quash the delivery of the property allotted in favour of the decree holder under the final decree passed in the suit. She has filed a suit for declaration of title and possession, which admittedly was dismissed, and against which an appeal preferred by her with a petition for condonation of delay and an application to stay the execution of the decree passed in the suit in which she had filed the claim petition, is still pending for consideration was pressed before the learned Munsiff to adjourn the delivery; but, it was turned down by Ext.P11 order and the delivery of the property stands posted to 25.5.2009, is the case of the petitioner. Petitioner was directed to produce a copy of the order passed in his claim petition moved in the execution proceedings. Accordingly, the counsel for the petitioner produced a copy of the order dated 29.9.2008 passed by the learned Munsiff in E.A.No.721/2007 in E.P.No.572/2004 in O.S.No.293/1990. Perusing the order, it is noticed that the present petitioner is the daughter-in -law of the 1st defendant in the above suit and she obtained some right of the 1st WPC.11684/09 3 defendant under a deed after the passing of the final decree in the suit. As a transferee, she got right over a portion of the suit property from one of the parties in the suit after the passing of the final decree. Needless to point out she was bound by the decree, and holding so, the claim petition filed by her asserting independent title and possession over the property covered by the document was found against and it was dismissed as not maintainable. Admittedly, no further challenge by way of appeal was made by the petitioner against the dismissal of her claim petition, but, she has taken recourse to institution of a fresh suit for declaration of her title and possession. I need not advert to the merits of her suit moved after dismissal of her claim petition in the execution proceedings. It is evident that the resistance made by the petitioner, to stall the delivery of the property in execution of the final decree passed in the suit for partition, on the basis of an appeal preferred by her against the dismissal of her suit, that too, with a petition for condoning the delay in filing such appeal, is unworthy of any merit. Ext.P11 order passed by the WPC.11684/09 4 learned Munsiff is proper and valid, and challenge against such order by way of a writ, in the facts and circumstances of the case, will not lie. Petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009