IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 W.P(C).No. 21317 of 2008(K) -------------------------- AGAINST THE ORDER IN EA 102/2008 IN EP 56/2007 IN OS.34/1998 OF MUNSIFF COURT,ALUVA .................... PETITIONER: ------------ SABUKHAN, AGED 45, S/O. MUHAMMED KHAN, H.NO.122, AISWARYA NAGAR COLONY, THAIKKATTUKARA , ALUVA WEST VILLAGE BY ADV. SRI.S.MUHAMMED HANEEF RESPONDENTS: ------------ 1. FAZALUDHEEN.V.K., 43 YEARS, S/O.KUNJALI, VALIYAPARAMBIL HOUSE, CHERANALLOOR KARA, CHITTOOR VILLAGE, KANAYANNUR TALUK. 2. MAYA PRATHAPAN, 44 YEARS, KAREETHARA HOUSE, VALLARPADOM PO., PANAMUKADU KARA, MULAVUKADU. 3. NOUSHAD, 43 YEARS, S/O.MOHAMMED KHAN, KOTTAKKAKATHU HOUSE, THAIKKATTUKARA, ALUVA WEST VILLAGE 4. NABEESA, AGED 67, W/O.MOHAMMED KHAN, DO.DO. 5. BEENA ABDUL MAJEED, AGED 48, D/O.MOHAMMED KHAN, DO.DO,. 6. ASHA NASAR, AGED 38, D/O.MOHAMMED KHAN, DO.DO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 21317/ 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE PETITION IN E.A NO.102/2008 IN E.P NO.56/2007 IN O.S. NO.34/1998 ON THE FILE OF THE MUNSIFF COURT, ALUVA. EXHIBIT P2 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN THE E.A NO.102/2008 IN E.P. NO.56/2007 IN O.S. NO.34/1998 DATED 28/06/2008. EXHIBIT P3 : TRUE COPY OF THE COMMISSION REPORT DATED 24/06/2006 IN O.S. NO.34/1998 OF MUNSIFF COURT, ALUVA. EXHIBIT P4 : TRUE COPY OF THE COMMISSION REPORT DATED 26/10/2006 IN O.S. NO.34/1998 OF MUNSIFF COURT, ALUVA. EXHIBIT P5 : TRUE COPY OF THE ORDER DATED 28/06/2008 IN E.A. NO.102/2008 IN E.P NO.56/2007 IN O.S. NO.34/1998 OF MUNSIFF COURT, ALUVA. /TRUE COPY/ P.A. TO JUDGE scm M. SASIDHARAN NAMBIAR, J ---------------------------------- W.P.(C) No. 21317 OF 2008 ---------------------------------------------- Dated this the 29th day of August, 2008 J U D G M E N T Petitioner is the second respondent in E.A. No. 102 of 2008. A claim petition is filed by respondents 1 and 2 in E.P. 56 OF 2007 in O.S. 34 of 1998 on the file of Munsiff Court, Aluva. O.S. No. 34 of 1998 was a suit for partition. Final decree was passed and E.P. 56 of 2007 was filed for execution of the decree. E.A No. 102 of 2008 was filed under Rule 97 and 99 of Order XXI of Code of Civil Procedure by third parties to the decree contending that they are tenants of the building in the decree schedule property and therefore they cannot be evicted in execution of the decree. Petitioner filed Ext. P2 objection to Ext. P1 claim petition resisting the claim and contending that the claimant have no right in the property. Learned Munsiff, under Ext. P5 order without considering the right and interest of the claim petitioners, directed the Amin to effect symbolic delivery of the building, virtually allowed the claim petition without considering the merits of the petition. This petition is filed under Article 227 of Constitution of India challenging Ext. P5 W.P.C.No. 21317 OF 2008 -2- order. Though notice was sent to respondents 1 and 2, they did not appear. 2. Learned counsel appearing for the petitioner was heard. 3. Though an order passed in a petition filed under Rule 99 of Order XXI of Code of Civil Procedure it is to be adjudicated as provided under Rule 101 of Order XXI and the decision is to be treated as a decree as provided under Rule 103 of Order XXI and if so there is an appeal as provided under Ext. P5 order the learned Counsel did not try the petition like a suit and did not decide the rights of the parties in the claim petition and therefore Ext. P5 order cannot be treated as a decree. Therefore this court can exercise the rule provided under Article 227 of Constitution of India. 4. When a claim petition is filed under either Rule 97 or Rule 99, that application is to be treated as a suit and evidence has to be recorded as in a suit and as provided under Rule 103 the order passed on adjudication either under Rule 92 or Rule 100 is to be treated as a decree. Therefore the learned Munsiff is bound to try the claim petition like a suit and decide the rights claimed by claim petitioners. As neither the right nor the objection filed by the decree holder was considered, Ext. P5 order is quashed. Learned Munsiff is W.P.C.No. 21317 OF 2008 -3- directed to reconsider Ext. P1 application and pass appropriate orders in accordance with law after complying with Rule .......of Order XXI of Code of Civil Procedure. Writ Petition is disposed as above. M. SASIDHARAN NAMBIAR, JUDGE vkm