IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 OP(C).No. 2623 of 2011(O) ------------------------- EP NO.63/2005 IN OS.1/1998 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER (S)/JUDGMENT DEBTOR NO.7: -------------------- K.B.SAYED, AGED 58 YEARS, S/O.BAVA RESIDING AT CC NO.3/301, VALAPPU, ERAVELI CANAL ROAD, KOCHI 1. BY ADV. SRI.R.O.MUHAMED SHEMEEM SMT.NASEEHA BEEGUM P.S. RESPONDENT(S)/PLAINTIFFS: --------------- 1. T.K.RAHMATH, AGED ABOUT 54 YEARS, D/O.LATE ZAINUDHEEN, RESIDING AT CC NO.23/2121, NIDHEESH BHAVAN, PALLURUTHY, KOCHI – 6. 2. T.K.KAMARUDHEEN, AGED ABOUT 42 YEARS, D/O.LATE ZAINUDHEEN, RESIDING AT CC NO.23/2121, NIDHEESH BHAVAN, PALLURUTHY, KOCHI – 6. 3. T.K.SHARMILA, AGE ABOUT 40 YEARS, D/O.LATE ZAINUDHEEN, RESIDING AT CC NO.23/2121, NIDHEESH BHAVAN, PALLURUTHY, KOCHI – 6. 4. PATHUMAYI.C.FATHIMA, AGE ABOUT 80 YEARS, W/O.LATE ALI, RESIDING AT CC NO.20/791, VELYATHU APRAMBU, PALLURUTHY, KOCHI 6. 5. KUNJAMINA, AGE ABOUT 53 YEARS, D/O.LATE BEERANKUTTY, RESIDING AT CC NO.3/249, ERAVEL CANAL ROAD, KOCHI. 6. FATHIMA @ BEEVI, AGED 54 YEARS, W/O.LATE ABDULLAKUTTY, TAYKKAKAVU HOUSE, BHAGAVATHY, SINGH ROAD, VYTTILA (PO), KOCHI-19. 7. SUDHEER, AGED NOT KNOWN, S/O.FATHIMA @ BEEVI, TAYKKAKAVU HOUSE, BHAGAVATHY, SINGH ROAD, VYTTILA (PO), KOCHI-19. 8. SUNITHA, AGE NOT KNOWN, D/O.FATHIMA @ BEEVI, TAYKKAKAVU HOUSE, BHAGAVATHY, SINGH ROAD, VYTTILA (PO), KOCHI-19. 9. ANITHA, AGE NOT KNOWN, D/O.FATHIMA @ BEEVI, TAYKKAKAVU HOUSE, BHAGAVATHY, SINGH ROAD, VYTTILA (PO), KOCHI-19. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.2623/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF EP NO.63/2005 IN OS 1/1998 PENDING BEFORE SUBORDINATE JUDGE'S COURT, KOCHI EXT.P2 TRUE COPY OF PRELIMINARY JUDGMENT DATED 12.10.2000 IN OS 1/1998 PENDING BEFORE SUBORDINATE JUDGE'S COURT, KOCHI EXT.P3 TRUE COPY OF FINAL JUDGMENT DATED 4.12.2003 IN IA NO.1371/2001 IN OS 1/1998 PENDING BEFORE SUBORDINATE JUDGE'S COURT, KOCHI EXT.P4 TRUE COPY OF DECREE DATED 4.12.2003 IN IA NO.1321/2002 IN OS 1/1998 PENDING BEFORE SUBORDINATE JUDGE'S COURT, KOCHI EXT.P5 TRUE COPY OF APPLICATION FOR POLICE ASSISTANCE DATED 4.12.2008 IN EP NO.63/2005 OF THE SUBORDINATE JUDGE'S COURT, KOCHI EXT.P6 TRUE COPY OF EA NO.84/2011 IN EP NO.63/2005 IN OS NO.1/1998 OF SUBORDINATE JUDGE'S COURT, KOCHI //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2623 of 2011 -------------------------------------- Dated this the 10th day of August, 2011. JUDGMENT Petitioner is the 7th judgment debtor in E.P.No.63 of 2005 in O.S.No.1 of 1998 of the court of learned Principal Sub Judge, Kochi. That was a suit for partition. During the pendency of the suit petitioner and certain other were impleaded as additional defendants as if they are tenants in occupation of various portions of the buildings sought to be partitioned. Grievance of petitioner is that notwithstanding that petitioner is a tenant of the building in question, 1st respondent/decree holder is attempting to evict petitioner from the tenanted premises. Learned counsel submitted that learning about that, petitioner preferred Ext.P6, application to stay eviction of petitioner from the schedule property in his possession under the guise of partition and execution of the decree, otherwise than by giving symbolic possession to the 1st respondent. But without disposing of that application executing court is proceeding with the request of 1st respondent. 2. Learned counsel has invited my attention to Ext.P2, preliminary judgment, where, in paragraph 7 contention of petitioner and others that they are in possession of the building as tenants is referred but, in paragraph 14 it is stated that the claim of tenants regarding payment of advance amount to the 1st defendant is not a matter to be decided in the suit for partition. OP(C) No.2623/2011 2 3. The question whether petitioner is liable to be evicted otherwise than in accordance with the statutory provisions governing termination of tenancy is a matter which the executing court has to decide before physical delivery of the property (if any) is ordered. Executing court has to decide whether it is a matter where symbolic possession of the property where petitioner is allegedly occupying is to be given. At any rate, the claim made by petitioner is required to be disposed of by the executing court before ordering actual, physical delivery of the property. Resultantly this Original Petition is disposed of directing executing court to dispose of the objection raised by petitioner in Ext.P6, application before ordering actual physical delivery of the property and pass appropriate orders in the matter as provided under law. THOMAS P.JOSEPH, Judge. cks