IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 OP(C).No. 1086 of 2011(O) ------------------------------------- [EP.NO.414/2010 IN OS.NO.31/2009 OF ADDITIONAL MUNSIFF'S COURT, KOLLAM] .................... PETITIONERS/JUDGMENT DEBTORS: ------------------------------------------------------ 1. JACOB, S/O. ALOSIUS, KANJIRAMVILA THEKKETHIL VEEDU, KURUSSADI BHAGOM, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM-691 503. 2. MINI JACOB, W/O. JACOB, KANJIRAMVILA THEKKETHIL VEEDU, KURUSSADI BHAGOM, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM-691 503. BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.T.S.HARIKUMAR, SRI.K.JAGADEESH. RESPONDENTS/DECREE HOLDERS: ---------------------------------------------------- 1. SOLAMON, S/O. THOMAS, SUNITHA BHAVAN, KURUSSADI BHAGOM, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM-691 503. 2. SONIYA, W/O. SOLAMAN, SUNITHA BHAVAN, KURUSSADI BHAGOM, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM-691 503. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. -------------------------------------------- OP(C) No.1086 of 2011 -------------------------------------------- Dated this the 18th day of March 2011 Judgment This petition under Article 227 of the Constitution of India, is filed praying to set aside the order of delivery of property to respondents as per Ext.P4 order in EP No.414/10 in OS No.31/09 before the Additional Munsiff's Court, Kollam and to re-deliver the property to the petitioners. 2. The petitioners were the defendants in OS No.31/09, who suffered a decree. The suit was one for permanent prohibitory injunction. After trial, even though the defendants contested the matter, the suit was decreed against them. It is stated that it was an ex parte decree and even though a petition for setting aside the ex parte decree was filed, that has been dismissed. It is pointed out that an appeal is pending against the said order. In the meanwhile, the decree holders moved EP No.414/10 and OPC 1086/11 2 sought to have a compound wall put up in terms of the decree. A copy of the EP is marked as Ext.P1. The petitioners herein filed detailed objections to it, as per Ext.P4. It is pointed out that on 31.01.2011, while granting police protection as sought for by the decree holder, the execution court ordered delivery of the property. A copy of the said order is Ext.P3. The Amin therefore, went to the property and sought to have the property delivered. The present grievance of the petitioner is that there was no decree for delivery of the property and there was only a decree for injunction and also permitting the decree holders to put up a boundary wall. In execution of that decree, now the property belonging to the petitioners is being delivered erroneously. The petitioners therefore, pray that the property may not be delivered. 3. If the petitioners have a case that execution has been levied in excess of what is granted by the decree, their remedy is to approach the execution court for appropriate relief. On going through the execution petition, OPC 1086/11 3 it is only to the effect that the defendants shall not trespass into the plaint schedule property and commit any waste therein and also to put up a boundary wall. Prima facie, it appears that there is some error in the proceedings. Whatever that be, the petitioner's remedy is to approach the Execution Court, appraise that court of the true state of affairs and seek appropriate reliefs. Without prejudice to that right of the petitioners, this OP is disposed of. P.Bhavadasan, Judge sta OPC 1086/11 4