IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 OP(C).No. 1712 of 2011(O) ------------------------- E.P.395/2008 IN OS.139/1986 of PRINCIPAL NUNSIFF COURT,NEYYATTINKARA .................... PETITIONER (S): 2ND DEFENDANT/JUDGMENT IN DEBTOR: ---------------------------------------------------------------------------------------- JOSEPH NADAR RAJAYYAN, S/O.JOSEPH, KALAMGARUVIL PUTHENVEEDU, MARATHOOR DESOM, NEYYATINKARA, THIRUVANANTHAPURAM DISTRICT.- 695 121. BY ADV. SMT.BINDU SREEKUMAR RESPONDENT(S): PLAINTIFFS/DECREE HOLDER: ------------------------------------------------------------------------- 1. LEELA AMMA, AGED 62, D/O. DAKSHAYANI, NAVARATHNA NO.1, ARANOOR, CHANGAZHASSERIL VILLAGE, THIRUVANANTHAPURAM -695 015. 2. VIJAYAKUMARI, AGED 57, D/O. DAKSHAYANI AMMA, THEKKEVILA VEEDU, MELARANOOR, CHERYAZHASSERIL VILLAGE, THIRUVANANTHAPURAM - 695 015. 3. SREEKUMARI, AGED 54, D/O. DAKSHAYANI AMMA, THEKKEVILA VEEDU, MELARANOOR, CHERYAZHASSERIL VILLAGE, THIRUVANANTHAPURAM - 695 015. 4. JOSEPH NADAR THAMPI, AGED 66, MELEKUZHIVILA PUTHEN VEEDU, KARTHIKAPPALLI, MARATHOOR DESOM, NEYYATINKARA PAKUTHY, THIRUVANANTHAPURAM DISTRICT. (LEGAL HEIR OF AVEL NADAR JOSEPH NADAR) - 695 121. Kss ..2/- ..2.... OPC.NO.1712/2011 5. KUNJI GNANASUNDAI (LEGAL HEIR OF IST DEFENDANT), MELEKUZHIVILA, PUTHEN VEEDU, KARTHIKAPPALLI, MARATHOOR DESOM, NEYYATINKARA PAKUTTY, THIRUVANANTHAPURAM DISTRICT - 695 121. 6. DASAYYAN, MELEKUZHIVILA PUTHEN VEEDU, KARTHIKAPPALLI, MARATHOOR DESOM, NEYYATINKARA PAKUTTY, THIRUVANANTHAPURAM DISTRICT - 695 121. 7. VELAYUDHAN NADAR, MELEKUZHIVILA PUTHEN VEEDU, KARTHIKAPPALLI, MARATHOOR DESOM, NEYYATINKARA PAKUTHY, THIRUVANANTHAPURAM DISTRICT - 695 121. 8. PADMANABHAPILLAI, VELAYUDHAN PILLAI, THUMPOTTA, KULANTHINKARA, PUTHENVEEDU, ARYIROOR DESOM, PERUMKADAVILA PAKUTHI - 695 121. 9. RAGHAVAN NADAR, VADAKKEKARA PUTHENVEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA PAKUTHI - 695 121. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.1712/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.139/86 ON THE FILE OF MUNSIFF COURT, NEYYATTINKAR. P2: COPY OF THE WRITTEN STATEMENT. P3: COPY OF ORDER DTD. 18/04/92 OF THE LAND TRIBUNAL, NEYYATINKARA. P4: COPY OF THE EXPARTE DECREE. P5: COPY OF THE EXECUTION PETITION. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1712 of 2011 -------------------------------------- Dated this the 22nd day of July, 2011. JUDGMENT Learned counsel for petitioner submits that the 'not pressed memo' is not pressed. 2. The second judgment debtor in E.P.No.395 of 2008 in O.S.No.139 of 1986 of the court of learned Principal Munsiff, Neyyattinkara is the petitioner before me. Respondents/decree holders/plaintiffs have obtained a decree for redemption of mortgage in their favour and filed E.P.No.395 of 2008 to execute that decree. In the execution petition, petitioner came up with an objection that in paragraph 2 of the plaint respondents had claimed right over property as per partition deed No.1006 of 1116 ME. but that document was not produced on the trial side in spite of there being an application filed by the petitioner and others to produce the said document. Learned Munsiff rejected the contention and proceeded with the execution petition. That order is under challenge. Learned counsel submitted that without proving title of respondents, decree cannot be executed. It is also submitted that Ext.A1, otti and kuzhikkanam deed No.2241 of 1120 ME. executed by one Parvathi Pilla and others in favour of Sankara Pilla and Ext.A4, assignment deed No.2147 of 1960 dated 19.04.1960 by which the O.P.(C) No.1712/2011 2 said Sankara Pilla sold the property to the first defendant who is the father of the petitioner are not produced . Thus it is contended that respondents have no right over the property. 3. I am afraid, these contentions do not arise for consideration in the executing court. Executing Court cannot go behind the decree, it is the settled position of law. If petitioner has any challenge to the decree on any ground whatsoever, remedy is elsewhere and as provided under law. 4. In the view of the above, executing court is justified in declining to dismiss the execution petition on the plea raised by petitioner. Resultantly this Original Petition is dismissed without prejudice to other rights if any, of the petitioner. THOMAS P.JOSEPH, Judge. cks