IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 17618 of 2008(V) --------------------------------------- OS.NO.76/1992 OF SUB COURT, TIRUR. .................... PETITIONERS: --------------------- 1. KAVIL RADHA AMMA, D/O.KODIYERI @ KELUMENON AND KAVIL JANAKI AMMA, AGED 68 YEARS RESIDING AT SREE VIJAYAKAM, KALADY P.O. MALAPPURAM. 2. KAVIL VIJAYALAKSHMI AMMA, D/O.KODIYERI @ KELUMENON AND KAVIL JANAKI AMMA, AGED 58, RESIDING AT GEETHA BHAVAN, KALADY PO., MALAPPURAM. 3. KAVIL NARAYANANKUTTY @ RAJAN, S/O. KODIYERI @ KELUMENON AND KAVIL JANAKI AMMA, AGED 55, RESIDING AT 11/890, VELIYANNOOR, TRISSUR. 4. KAVIL ARAVINDAKSHAN, S/O.KODIYERI @ KELU MENON AND KAVIL JANAKI AMMA, AGED 56, RESIDING AT 33/396 SARGAM APARTMENTS, SHOLA ROAD, NARAYANAPURA, AHMEDABAD 5. KAVIL AMBIKA, D/O.KODIYERI @ KELUMENON AND KAVIL JANAKI AMMA, AGED 54, RESIDING AT VAISHNAV, P.O. KALADY,MALAPPURAM. BY ADV. MR. A.V.M.SALAHUDDEEN. RESPONDENTS: ------------------------ 1. KODIYERI GOPALAKRISHNA MENON, S/O.KODIARY DHAKSHAYANI @ ITHONA AMMA. 2. KODIYERI SARASWATHI AMMA, D/O.KODIARY DHAKSHAUANI @ ITHONA AMMA. W.P.(C). NO.17618/2008-V: 3. KODIYERI KALATHINGAL SREEDHARAMENON, S/O.KODIYERI AMMU @ DEVAKI AMMA, AGED 80 YEARS, PARAPPIL HOUSE, PERUNTHALMANNA TALUK, PERUNTHALMANNA AMSOM, DESOM, JUBILI ROAD, NEAR T.B. PERUMTHALMANNA P.O. 4. KODIYERI KALATHINGAL ACHUTHAKUTTY MENON, S/O.KODIYERI AMMA@ DEVAKI AMMA, AGED 66 YEARS, KALATHINGAL HOUSE, TIRUR TALUK, OZHOOR AMSOM DESOM, PO.OZHOOR. R1 BY ADV. MR.K.JAYAKUMAR, R2 BY ADV. MR.P.B.KRISHNAN, R3 & R4 BY ADV. MR.P.CHANDRASEKHAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17618/2008-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE EXECUTION PETITION NO. E.P.50/2007 IN I.A. 388/99 IN O.S. NO. 76/92 . EXT.P.2: COPY OF THE E.A. NO. 455/2007 IN E.P. NO. 50/2007. EXT.P.3: COPY OF THE E.A. NO. 456/2007 IN E.P. NO. 50/2007. EXT.P.4: COPY OF THE COMMON ORDER DTD. 04/04/2008 IN E.A. NO. 455 AND 456 OF 2007 IN E.P. NO. 50/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 17618 OF 2008 V ```````````````````````````````````````````````````` Dated this the 7th day of July, 2009 J U D G M E N T Petitioners are auction purchasers of the property in the final decree passed in OS.No.76/92, a suit for partition. In execution of the decree when delivery of the property was sought for it was objected to by some strangers, respondents 3 and 4 in the present writ petition. The petitioners moved two applications before the execution court for impleading the obstructors in the execution proceedings and for getting delivery of the property from them removing the obstruction. Exts.P2 and P3 are the applications moved by the petitioners. Ext.P2 was filed quoting Order 1 Rule 10 and Ext.P3 application under Order 21 Rule 17 of the CPC. The learned Sub Judge dismissed both the applications by a common order finding that both the applications are not maintainable. Propriety and correctness of those orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. From the WPC.17618/08 : 2 : submissions made and the facts and circumstances presented, I find the applications have been dismissed on technical ground without adverting to the grievance canvassed by an auction purchaser who had expended more than Rs.4,70,000/- to claim benefits under the decree. True the applications have been filed quoting a wrong provision. It is for the court to examine which provision of law is applicable if at all any mistake is committed by a party. The learned counsel for the petitioner invited my attention to Bhanwar Lal Vs. Satyanarain and another [AIR 1995 SC 358] and Brahmdeo Chaudharay Vs. Rishikesh Prasad Jaiswal and another [AIR 1997 SC 856] in which the apex court has stated in unequivocal terms that the wrong provision quoted by a party is not a ground to deny relief and the substance and the relief claimed has to be adjudicated with reference to the Rule applicable. Petitioners should have moved an application under Order 21 Rule 97 CPC for removing the obstruction in delivery of the property. That they have not done so, apparently, was a mistake. The petitioners should have been given an opportunity to correct that mistake and proceed against the obstructionists. The WPC.17618/08 : 3 : other respondents in the petition cannot claim any interest once the property had been put in auction and purchased by the petitioners, and so much so, the adjudication of the sole question with reference to the obstruction caused, as between the petitioners and the obstructionists, who are respondents 3 and 4 in the writ petition, alone arise for consideration. Setting aside Ext.P4 order, I direct the court below to treat the petitions filed by the petitioners as an application filed under Order 21 Rule 97 CPC and dispose them after adjudication in accordance with law. The petitioners shall be given an opportunity to make corrections in the petition, if necessary, to raise further allegations, if any, required to consider such petitions as an application under Order 21 Rule 97 CPC. Writ petition is allowed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge