IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 WP(C).No.30104 of 2008 (H) ---------------------------------- AGAINST THE ORDER IN E.P.4/2008 IN OS.278/2002 of MUNSIFF COURT,ALUVA .................... PETITIONER: --------------- SURESH BABU, S/O. KUMARAN, THACHETTU HOUSE, ASOKAPURAM, ALUVA. BY ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.PRAMOD DAS LOHYA RESPONDENTS: ------------------ 1. SRI.MOHAMMED ASEEM, S/O.KUNJALI NAINA, VEZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 2. SMT.HALEEMA NAINA, W/O.KUNJALI NAINA, VAZHAPPILLY HOUSE, PLACE ROAD, ALUVA. 3. SRI.V.K.HARIS, VEZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 4. THE ALUVA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALUVA-683102. ADV. SRI.V.M.KURIAN FOR R4 SMT.TULASI PANICKER SRI.A.VIJAYAKUMAR FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30104 of 2008 (H) APPENDIX PETITIONER'S EXTS:- EXT.P1:- COPY OF JUDGMENT DT.30/09/04 IN O.S.278/02. EXT.P2:- COPY OF DECREE IN O.S.278/02. EXT.P3:- COPY OF EXECUTION PETITION 4/08 IN O.S.278/02. EXT.P4:- COPY OF OBJECTION DT.14/03/08 BY PETITIONER (JD2) TO EXT.P3. EXT.P5:- COPY OF COMMISSION APPLICATION DT.28/08/08 MADE BY COUNSEL FOR R1-R3(DH) AS EA.151/08 IN E.P.4/08. EXT.P6:- COPY OF OBJECTION DT.29/08/08 BY PETITIONER (JD2) TO EXT.P5. EXT.P7:- COPY OF COMMISSION APPLICATION DT.22/09/08 EA.161/08 IN E.P4/08. EXT.P8:- COPY OF ORDER DT.29/09/08 IN E.P.4/08 IN O.S.278/02. //TRUE COPY// P.A. TO JUDGE K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.30104 of 2008 ------------------------------------------------ Dated this the 24th day of November, 2008 JUDGMENT Service is complete. Heard the counsel for the petitioner/second judgment debtor. 2. It is submitted by the counsel for the petitioner that without issuing a commission as prayed for in E.A.161/08, the court below has passed orders allowing demolition of building in 'B' schedule property as prayed for in the decree. 3. The prayer in E.A.161/08 is to depute an Advocate Commissioner for identifying 'A' and 'B' schedule properties in the suit on the basis of survey documents and title deeds of the parties and for ascertaining the existence, title, ownership and possession and nature of building No.XVIII/433 and also for the preparation of an inventory of stock in trade in the said building. The execution W. P. C. No.30104 of 2008 -2- court has however, ordered to depute an Advocate Commissioner to assist the Court Officer for executing the act of demolition vide E.A.151/08 filed by the decree holder probably with a view to see that no excesses are done by the Amin who is deputed to execute the work. However, E.A.161/08 happened to be posted to a subsequent date as it was filed on 23/09/08 when the E.P stood posted for orders on the objections filed to the execution of the decree and hence, the posting for orders could not have been reopened to consider E.A.161/08. The decree in the suit is one directing the first defendant to demolish the structure illegally constructed in plaint 'B' schedule property within a period of two months and restraining the second defendant by a decree of permanent prohibitory injunction from conducting 'C' class shop in plaint 'B' schedule property any further and providing W. P. C. No.30104 of 2008 -3- further that in case the first defendant fails to demolish the illegal construction plaintiff will be entitled to remove the same through due process of law. The unauthorised construction in the 'B' schedule property necessarily will be removed and demolished in execution of the decree and as per the decree the second defendant is permanently prohibited from conducting 'C' class shop in the room in 'B' schedule any further in view of the said decree of permanent prohibition against the second judgment debtor. Second judgment debtor has no voice in the matter to resist execution of the executable portion of the decree which is as against the first judgment debtor only. All the same, if he is still unauthorisely conducting business in the structure illegally constructed in 'B' schedule property, he has to be removed forcibly if need be while demolishing the building. There is absolutely W. P. C. No.30104 of 2008 -4- no merit in this Writ Petition praying for Ext.P8 order being quashed. The petitioner/ second judgment debtor is not entitled to any relief and this Writ Petition deserves only to be dismissed. 4. In the result, I dismiss this Writ Petition. K.P.BALACHANDRAN, JUDGE kns/-