IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 OP(C).No. 3561 of 2011(O) ------------------------------------- O.S. NO.283/2005 OF MUNSIFF COURT, ATTINGAL. ............ PETITIONERS: -------------------- 1. ALPHONSA STEPHEN , CHEMPALLIPPADU VEEDU, PUTHUKKURICHI, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. BANAS STEPHEN, CHEMPALLIPPADU VEEDU PUTHUKKURICHI, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH, SRI.K.M. ALEXANDER. RESPONDENT(S): ------------------------- 1. ABDUL BUHARI, S/O.SUBAIR, PUNNAMOOTU VEEDU, PUTHUKKURICHI, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695 001. 2. SMITHA , D/O.ABIDA, PUNNAMOOTU VEEDU PUTHUKKURICHI, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695 001. R1 BY ADV. SRI.G.S.REGHUNATH. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3561 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS.283/2005 OF MUNSIFF'S COURT, ATTINGAL. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS.283/05 OF MUNSIFF'S COURT, ATTINGAL. EXT.P3 TRUE COPY OF THE EXECUTION PETITION NO.31/2011 DT.25.6.11 OF MUNSIFF'S COURT, ATTINGAL. EXT.P4 TRUE COPY OF THE IA.2576/2011 IN OS. 283/2005 DT. 7.10.2010 ON THE FILE OF MUNSIFF'S COURT, ATTINGAL. EXT.P5 TRUE COPY OF THE OBJECTION TO EXT.P4. EXT.P6 TRUE COPY OF THE IA.2577/2011 IN OS.283/05 DT. 7.10.2011 OF MUNSIFF'S COURT, ATTINGAL. EXT.P7 TRUE COPY OF THE OBJECTION TO EXT.P6. EXT.P8 TRUE COPY OF THE IA.2578/2011 IN OS.283/05 DT. 7.10.2011 OF MUNSIFF'S COURT, ATTINGAL. EXT.P9 TRUE COPY OF THE OBJECTION TO EXT.P8. EXT.P10 TRUE COPY OF THE OBJECTION TO EXT.P3 PETITION. EXT.P11 TRUE COPY OF THE ORDER DT. 10.10.2011 IN EP.31/2011 IN OS.283/2005 OF MUNSIFF'S COURT, ATTINGAL. EXT.P12 TRUE COPY OF THE EA.105/2011 IN EP.31/11 IN OS.283/05 DT. 29.10.2011 OF MUNSIFF'S COURT, ATTINGAL. EXT.P13 TRUE COPY OF THE PLAINT IN OS.459/2009 OF MUNSIFF'S COURT ATTINGAL. RESPONDENT'S EXHIBITS:- EXT.R3(a): COPY OF THE ORDER DATED 16/05/2006 OF THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM. EXT.R3(b): COPY OF THE JUDGMENT DATED 30/11/2010 IN O.S. NO.283/2005 OF MUNSIFF'S COURT, ATTINGAL. EXT.R3(c): COPY OF THE DECREE DATED 30/11/2010 IN O.S. NO.283/2005 OF THE MUNSIFF'S COURT, ATTINGAL. EXT.R3(d): COPY OF THE OBJECTION TO THE E.P. NO.31/2011 FILED BY PETITIONER ON 07/10/2011. //TRUE COPY// rs P.A. TO JUDGE THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3561 of 2011 --------------------------------------- Dated this 15th day of November, 2011 JUDGMENT This original petition is for a direction to dispose of Exts.P4, P6 and P8, applications filed by the petitioners in O.S.No.283 of 2005 of the Court of learned Munsiff, Attingal and in the meantime, to keep in abeyance execution proceeding for a reasonable time to enable petitioners challenge the orders that may be passed on Exts.P4, P6 and P8 in appropriate proceedings in case the said orders happened to be adverse to the petitioners. 2. Respondent filed the suit for recovery of possession of 12 cents in R.S.No.99/6 and a thatched shed situated thereon claiming that at a time when petitioners wanted to renovate their house in the adjoining property, they requested to rent out the thatched shed for temporary residence on rental arrangement, that request was allowed, petitioners accordingly occupied the shed and later respondents cancelled that arrangement by notice and sued for eviction. Petitioners contended that they are owners in possession of the property comprised in survey 100/1 and that the attempt of respondents is to claim right over property comprised in survey 100/1 also. Petitioners remained O.P(C).No.3561 of 2011 -: 2 :- ex parte at one stage. Thereafter, respondents obtained report and plan of the Advocate Commissioner showing identity of the suit property. That was followed by learned Munsiff posting the case for filing additional written statement (notwithstanding that by that time, petitioners were set ex parte on 22.09.2010). On 29.11.2010, respondents adduced evidence and that was followed by a decree in their favour on 30.11.2010. Respondents filed execution petition on 24.05.2011. Petitioners appeared in that proceeding on 25.07.2011 and sought time to file objection. There were other postings also and ultimately on 10.10.2011 the executing court after hearing both sides passed Ext.P11, order directing delivery of property. According to the respondents, several attempts were made to take delivery of property with the assistance of the police and even with armed police but all were frustrated on account of the act of petitioners. 3. Exts.P4, P6 and P8, applications are now pending before the learned Munsiff for a decision. By Ext.P8, application petitioners have applied for stay of the execution proceeding. Ext.P6, application is to condone the delay of around one year in filing Ext.P4, application to set aside the ex parte decree. Since those applications are pending before the learned Munsiff, I need not go into the merit of the contentions raised by the parties in this proceeding since that may have a bearing on the decision O.P(C).No.3561 of 2011 -: 3 :- which learned Munsiff is to take on the said applications. 4. Learned counsel for respondents has placed reliance on the decisions in Abdul Razak Vs. Mangesh Rajaram Wagle (2010(1) KLT SN.No.33, Case No.42) and Shalini Shyam Shetti Vs. Rajendra Shankar Patil (2010(3) KLT S.N No.86, Case No.90) to contend about the limitations this court should bear in mind while exercising power under Art.227 of the Constitution. It is pointed out that the orders passed by the learned Munsiff on the trial side and the execution side are all within bounds so that interference is not required. It is also pointed out by learned counsel for respondents that Ext.P11, order of delivery is not so far challenged and in the circumstance also interference is not required. It is pointed out by learned counsel that though petitioners were set ex parte on 22.09.2010, even after the Advocate Commissioner submitted report and plan petitioners were given opportunity to file additional written statement obviously as counsel for respondents had represented them in the trial court. The further aspect that the learned counsel pointed out is that petitioners had appeared in the executing court on 25.07.2011 and time was granted to them to file counter to the execution petition upto 10.10.2011 and it is while so, on 07.10.2011 that petitioners filed Exts.P4, P6 and P8, applications. According to the learned counsel, even after O.P(C).No.3561 of 2011 -: 4 :- appearance in the executing court on 25.07.2011, petitioners chose to prefer Exts.P4, P6 and p8, applications only on 07.10.2011 which according to learned counsel is only to harass the respondents. 5. As aforesaid, it is not appropriate for me to go into the merit or otherwise of Exts.P4, P6 and P8, applications. I am told that those applications are posted for hearing on 19.11.2011 while the execution petition stand adjourned to 22.11.2011. In the above view of the matter, I consider it appropriate to direct the learned Munsiff to dispose of Exts.P4, P6 and P8, applications as early as possible, at any rate before 26.11.2011. Both parties shall co-operate with the Court for disposal of the said applications within the said time. The proceeding in execution will stand in abeyance until 26.11.2011. Resultantly this original petition is disposed of as follows: (i) Learned Munsiff, is directed to dispose of Exts.P4, P6 and P8, applications as early as possible at any rate before 26.11.2011. (ii) The proceeding in execution will stand in abeyance till 26.11.2011. (THOMAS P. JOSEPH, JUDGE) Sbna/-