IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 4597 of 2009(V) --------------------------------- AGAINST THE ORDER DATED / / IN EP.225/2006 IN OS.283/1987 of PRL.SUB COURT, KOTTAYAM .................... PETITIONER : ---------------- C.JOHN MATHEW, CHURCH WOKER (UPADESHI), CHETTUTHADATHIL HOUSE, CHELAKOMBU KARA, NEDUMKUNAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DIST. BY ADV. SRI.M.P.RAMNATH RESPONDENTS : ------------------- 1. CSI TRUST ASSOCIATION, C/O. CSI, CENTRAL KERALA DIOCESE, KOTTAYAM, REP. BY POWER OF ATTORNEY HOLDERS. 2. THE TRAVANCORE COCHIN CMS ANGLICAN CHURH,CHELAKOMBU, CHELAKOMBU KARA, CHANGANASSERY TALUK, KOTTYAM DISTRICT REPRESENTED BY PRESENT VICAR IN CHARGE RT.REV.LUKOSE, C. VARGHESE, (SHOWN IN THE PROCEEDINGS IN THE COURT BELOW TO BE REPRESENTED BY KAIKARS' * (a) V.J.JOSEPH, VAHAKKAL, CHELAKOMBU P.O. AND (b) P.J.THOMAS, PLACKAL, CHELAKOMBU P.O. 3. E.J. THOMAS, ELAMPLAVIL HOUSE, CHELAKOMBU P.O. & KARA, CHANGANASSERY TALUK, KOTTAYAM DISTRICT. * R2 (a) IS DELETED AS PER ORDER DATED 27.03.2009 IN I.A.NO.4558 OF 2009 ADV. SRI.ABRAHAM GEORGE JACOB FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.4597 OF 2009 --------------------------------------- Dated this the 27th day of March, 2009 JUDGMENT The petitioner is the fourth judgment debtor in E.P.No. 225/2006 in O.S.No.283/1987 on the file of the Court of the Subordinate Judge, Kottayam. The suit was filed for recovery of possession. To execute the decree, E.P.No.225/2006 was filed. The writ petitioner filed objections dated 30.07.2007 (Ext.P3) in the execution petition. He raised a contention that the execution petition is not maintainable as the persons who have filed the execution petition as Mukthiar holders are not entitled to represent the decree holder. It was also pointed out that Mukthiars were not produced before the court. The writ petitioner also raised other objections to the Execution Petition. A separate objection was filed by the first defendant (Ext.P2). He has also raised a contention that the persons who filed the Execution Petition have no right to get the decree executed. The court below passed Ext.P7 order dated 24.01.2009 directing delivery to be made on 29.01.2009. Ext.P9 order was passed by the executing court on 04.02.2009 W.P.(C) No.4597 of 2009 2 which reads as follows :- “ E.A.No.75/09 allowed. Effect delivery on 09.02.2009 and report on 10.02.2009, as per the Order dated 24.01.2009. ” 2. On 04.02.2009, the court below passed Ext.P10 order in E.A.No.75/2009 directing the Sub Inspector of Police to give necessary assistance to the Amin for effecting delivery. The reliefs prayed for in the writ petition are the following : “I) To issue appropriate directions directing the Hon'ble Principal Sub Court Kottayam to consider and pass appropriate reasoned orders in the exhibit P1 execution petition after hearing and considering the objections filed by the petitioner and other JDs in the execution petition. II) To call for the entire records leading to order dated 24.01.2009 directing delivery of first item number property in the Execution petition and quash the said order and all subsequent orders of delivery passed thereafter. III) To direct the court below to issue copies of orders dated 24.01.2009 and 04.02.2009 applied for and pending. W.P.(C) No.4597 of 2009 3 IV) Pass any other orders or directions interlocutory or otherwise as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. V) Allow the cost of this writ petition. ” 3. As per I.A.No.4557/2009, the petitioner has produced Exts.P7 to P11 documents and he challenges Exts.P7, P9 and P10 orders. 4. The objection filed by the Writ Petitioner and other respondents in the Execution Petition was not properly considered by the court below. Without considering the objections, the order dated 24.01.2009 was passed ordering delivery. Subsequent orders were passed on the basis of the order dated 24.01.2009. When objections are raised by the judgment debtors questioning maintainability of the Execution Petition and the competence of the persons who filed the Execution Petition, the executing court should consider the objections and pass a reasoned order. In the case on hand, the executing court has not considered the objections. Therefore, Exts.P7, P9 and P10 orders (order dated 24.01.2009 in the execution petition, order dated 04.02.2009 in the execution W.P.(C) No.4597 of 2009 4 petition and the order dated 04.02.2009 in E.A.No.75/2009) are set aside. The executing court shall consider the objections filed by the judgment debtors afresh and pass appropriate orders after affording an opportunity of being heard to the parties. 5. The relief prayed for by the petitioner to issue certified copies of the orders passed by the court below has now become infructuous as the petitioner has received the copies. In the Writ Petition, the Writ Petitioner has averred that carbon copy of the order dated 04.02.2009 was applied for. Till the date of the filing of writ petition (on 11.02.2009), the carbon copy was not issued. A report was called for from the lower court. The learned Subordinate Judge submitted a detailed report dated 26.03.2009 in which it was stated that the petitioner has not applied for certified copies of the order dated 24.01.2009 or 04.02.2009 on 02.02.2009 and that he filed the copy application only on 12.02.2009 for issuing copy of the orders dated 24.01.2009, 29.01.2009, 04.02.2009 and 09.02.2009. The report shows that the averments in the Writ Petition are incorrect. The Writ Petition was admitted and W.P.(C) No.4597 of 2009 5 interim order was granted on these averments made in the Writ Petition. That Exts.P7, P9 and P10 are set aside since the grievance of the Writ Petitioner was not considered by the executing court cannot be taken as a justification for the incorrect averments made in the Writ Petition. The writ petitioner shall pay costs of Rs.2,500/- to the decree holder for the inconvenience caused to him by making incorrect averments in the Writ Petition. Costs shall be paid on or before 25.05.2009. If the petitioner fails to pay the costs, the Writ Petition would be treated as dismissed. The executing court shall dispose of the matter expeditiously and at any rate before 31st August, 2009, if the petitioner complies with the direction to pay costs. The Writ Petition is disposed of as above. K.T.SANKARAN JUDGE pac