IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 32266 of 2009(R) -------------------------- OS.365/2005 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER : --------------- AJITHA KUMARI, S/O.SARASWATHY AMMA PENGATTU PUTHEN VEEDU,KIZHAVOOR,THRIKKOVILVATTOM VILLAGE, KOLLAM. BY ADV. SRI.B.CHANDRA LAL RESPONDENT: --------------- MANILAL, S/O.KUNHURAMA PILLAI VADAKKEVILA VEEDU (SREENILAYAM) KOTTARA, MEEYANNOOR P.O.,KOTTARAKKARA, KOLLAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.32266 of 2009 ------------------------------------- Dated this the 20th day of November, 2009 JUDGMENT BASANT, J. This judgment must be read in continuation of the order dated 11.11.09. We have called for a report from the learned Judge of the Family Court and the learned Judge of the Family Court has submitted a report dated 17.11.09. The petitioner is the decree holder and he wants delivery of the property to be effected in his favour in execution. The court below did take steps for execution. The court below was prima facie satisfied that a tutorial college is being run in the 2 buildings in the petition schedule property. The proceedings in the suit do not refer to the existence of those 2 buildings. In execution of the decree delivery is sought of those 2 sheds also. The court found that there are indications to suggest that a tutorial college is being run there. In these circumstances, the court below wanted to probe further into the question as to whether any third party is in possession in those sheds. The anxiety shown by the court W.P(C) No.32266 of 2009 2 cannot be said to be unjustified or improper. The court certainly has the duty to ensure that the judgment debtor and decree holder do not collude to secure ejection of another party who is lawfully in his possession. The learned Judge in his anxiety to ensure that the steps in execution does not result in miscarriage of justice, even in the absence of a specific obstruction to execution, on the basis of the report of the amin, wanted the decree holder to take appropriate steps. Such steps have not been taken. It is for the petitioner/decree holder to apprise the court below of the real state of affairs. The anxiety shown by the court below to verify whether any third party is in lawful possession of the 2 sheds which are not even referred to in the schedule to the execution petition, is found by us to be absolutely justified. The petitioner/decree holder has unnecessarily rushed to this Court without and before taking necessary steps as directed by the Family Court. The petitioner/decree holder must now take necessary steps and satisfy the learned Judge of the Family Court that there is no third party in lawful possession. Appropriate further orders on merits must then be passed by the Family Court. Needless to W.P(C) No.32266 of 2009 3 say, the Family Court must ensure that steps in execution are taken and completed at the earliest and the Decree holder is not denied the fruits of the decree unjustly. 2. With the above observations, this Writ Petition is dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-