IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 OP(C).No. 1083 of 2010(O) ------------------------- OS.39/2010 of MUNSIFF COURT, VAIKOM .................... PETITIONER: ------------------------ INDIRAMMA, AGED 71 YEARS, W/O.BALAKRISHNAN, KOLLARIL THARA, T.V.PURAM P.O., VAIKOM VILLAGE, VAIKOM TALUK. BY ADV. SRI.S.SUDHISH KUMAR RESPONDENTS: --------------- 1. MOHANAN, AGED 51 YEARS, S/O.RAJAPPAN ACHARI, KIZHEKKEVEETTIL,KANNUKETTISSERY MURI, VAIKOM VILLAGE, VAIKOM TALUK. 2. LALITHA SURESH, AGED 45 YEARS, S/O.LATE SURESH, BALAJI NIVAS, KOLLERIL HOUSE, KANNUKETTISSERY MURI, VAIKOM VILLAGE, VAIKOM TALUK. ADV. SRI.SUBHASH CYRIAC FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1083 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PHOTOSTAT COPY OF the DECREE DTD 10.06.2010 EXHIBIT P2 : PHOTOSTAT COPY OF the SALE DEED NO.922/1994 OF VAIKOM SRO EXHIBIT P3 : PHOTOSTAT COPY OF the CLAIM PETITION FILED BY THE PETITIONER EXHIBIT P4 : PHOTOSTAT COPY OF the SALE NOTICE 08.12.2010 ISSUED BY THE ADVOCATE COMMISSIONER. RESPONDENTS EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.1083 of 2010 --------------------------------------- Dated this 01st day of December, 2011 JUDGMENT First respondent filed O.S.No.39 of 2010 in the Court of learned Munsiff, Vaikom for a decree for prohibitory injunction against the second respondent causing obstruction to the user of a pathway said to be situated on the western side of 11 cents belonging to the first respondent. It is stated that during the pendency of the suit respondents 1 and 2 settled the dispute and a compromise decree followed as per which according to the petitioner, the second respondent agreed to provide a pathway through the property over which petitioner, second respondent and her minor children have got co-ownership right but, without petitioner and the minor children of second respondent on the party array. First respondent filed E.P.No.165 of 2010 against the second respondent for enforcement of the decree. It is stated that sale notice was affixed on a few trees standing in the property over which petitioner along with the minor children of the second respondent claim co-ownership right. Learning about that, petitioner enquired and it was revealed that there was a compromise decree between respondents 1 and 2 which O.P(C).No.1083 of 2010 -: 2 :- according to the petitioner, is collusive and intended to defeat the right of petitioner and the minor children of second respondent. Thereon petitioner filed Ext.P3, application in the executing court under Rules 97 and 99 of Order XXI of the Code of Civil Procedure. The prayer in the petition is to direct learned Munsiff to dispose of Ext.P3, application keeping in abeyance execution of the decree. 2. Learned counsel contended that property referred in Ext.P3, application belonged to the late Suresh, son of petitioner and husband of second respondent and on his dying intestate on 03.05.2001 the said property devolved on petitioner, second respondent and her minor children. Learned counsel pointed out that it is without the junction of petitioner or the minor children of the second respondent who along with second respondent are co-owners that the second respondent entered into the settlement with the first respondent. 3. Learned counsel for first respondent contended that pathway is provided not through the property claimed by petitioner. 4. Having regard to the contentions raised, it is necessary that Ext.P3, application is disposed of as early as O.P(C).No.1083 of 2010 -: 3 :- possible. Execution proceeding to the extent it affected property over which petitioner claims co-ownership right will stand in abeyance until disposal of Ext.P3, application. Resultantly this original petition is disposed of as under: (i) Learned Munsiff, Vaikom is directed to dispose of Ext.P3, application (E.A.No.425 of 2010 in E.P.No.165 of 2010) in O.S.No.39 of 2010 as early as possible. (ii) It is directed that execution of the decree to the extent it related to the property over which petitioner claims co-ownership right and the improvements thereon will stand in abeyance until disposal of Ext.P3, application. (THOMAS P. JOSEPH, JUDGE) Sbna/-