IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 C.R.P.No. 444 of 2008(A) --------------------- AGAINST THE ORDER DATED 21/05/2008 IN E.P NO.34/2008 IN OS.468/1998 of MUNSIFF'S COURT,MUVATTUPUZHA .................... REVISION PETITIONERS/DEFENDANTS 4 & 5: --------------------------------------- 1. PATHROSE @ KURIACHAN, AGED 50, KAITHAMANATHARAYIL, KOTTAPPADY KARA, KOTTAPADY, KOTHAMANGALAM. 2. JOSE @ VARGHESE, AGED 53, KAITHAMANATHARAYIL, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS/PLAINTIFFS & 2nd DEFENDANT AND LEGAL HEIRS OF 1st and 3rd DEFENDANTS: ----------------------------------------- 1. MANI, S/O. CHACKO, MANGALATH HOUSE, KOTTAPPADY KARA, KOTTAPPADY, KOTHAMANGALAM. 2. LISSY, W/O. MANI, MANGALATH HOUSE, KOTTAPADY KARA, KOTTAPADY, KOTHAMANGALAM. 3. PAPPACHAN, AGED 68, S/O. VARKEY, KAITHAMANATHARAYIL, KOTTAPADY KARA, KOTTAPPADY, KOTHAMANGALAM. 4. CHINNAMMA, W/O. YOHANNAN, VELIYATHU HOUSE, KUTHUPUZHY.P.O, KOTHAMANGALAM. C.R.P.No. 444/2008 5. THEYYAMA VARKEY, PUTHIYADOM HOUSE, KUTHUPUZHY.P.O, KOTHAMANGALAM. 6. XAVIER (APPACHAN), KAITHAMANATHARAYIL, VADAKKANCHERRY.P.O. 7. ELSY, W/O. AVARACHAN, KAITHAMANATHARAYIL, NERIYAMANGALAM KARA, NERIYAMANGALAM VILLAGE. 8. SHANTI THOMAS, D/O. AVARACHAN, PULLIKATTIL HOUSE, NERIYAMANGALAM KARA, NERIYAMANGALAM VILLAGE. 9. SHINI, D/O. AVARACHAN, KAITHAMANATHARAYIL, NERIYAMANGALAM KARA, NERIYAMANGALAM VILLAGE. 10. MINI SHAJI, D/O. AVARACHAN, NIRAPPIL HOUSE, KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE. 11. WILSON, S/O. AVARACHAN, KAITHAMANATHARAYIL, NERIYAMANGALAM KARA, NERIYAMANGALAM VILLAGE. 12. GRACY MATHEW, MANIYATH, MYLOOR KARA, PULLANIMANGALAM.P.O. BY ADV. SRI.H.SIVARAMAN SRI.MATHEW CHERIAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.No. 444/2008 ORDER ON I.A. NO.1249/2008 IN C.R.P NO.444/2008 DISMISSED SD/- 11/07/2008 M. SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P. A TO JUDGE scm M.SASIDHARAN NAMBIAR, J. ........................................... CRP.No. 444 OF 2008 ............................................ DATED THIS THE 11TH DAY OF JULY, 2008 ORDER Petitioners are judgment debtors 4 and 5 in O.S.468 of 1998 on the file of Munsiff Court, Muvattupuzha. As per the decree in O.S.468 of 1998, first petitioner, 5th defendant in the suit is to execute a rectification deed in the name of the decree holders, plaintiffs showing the correct boundary of the property as shown in Ext.A1 gift deed No.3111 of 1994 of SRO, Kothamangalam within 14 days from the date of decree, failing which decree holders are entitled to get a rectification executed through court. Decree holders are also entitled to recover possession of the plaint schedule property as shown in Ext.C1(a) plan. The execution petition was filed before Munsiff Court, Muvattupuzha as E.P.34 of 2008. In the execution petition, on the death of 1st respondent, additional judgment debtors 11 to 13 were impleaded. Though judgment debtors 2, 4 and 5 appeared, execution petition was adjourned from time to time to complete steps regarding the impleading of legal heirs of first respondent. On 21.5.2008, steps were completed. The execution petition was posted to 23.5.2008. On that day, when the case was called CRP 444/2008 2 during roll call, counsel appearing for petitioners represented that an objection is being filed in the execution petition. The executing court, without verifying whether an objection is filed and without granting time, recording that no objection is not filed, passed an order directing delivery of possession of the property based on Ext.C1(a) plan and also directed the decree holder to produce the draft rectification deed. The order is challenged in this revision filed under Section 115 of Code of Civil Procedure. 2. Learned counsel appearing for petitioners and respondents/decree holders were heard. Learned counsel appearing for respondents made available certified copy of B diary which shows the details of proceedings of each day. 3. It is clear from the copy of B diary that case was called on 21.5.2007 and after serve on other judgment debtors were recorded, on the representation of the counsel appearing for petitioners that an objection is being filed, execution petition was adjourned to 23.5.2008. On that day, when execution petition was taken up, the same representation was made and learned Munsiff, recording that no objection filed, passed the order. As rightly pointed out by learned counsel appearing for CRP 444/2008 3 petitioners, the impugned order is illegal and irregular. The decree provides for execution of a rectification deed and delivery of the property. The prayer in the execution petition is also first for execution of rectification deed and then for delivery. What was done by learned Munsiff is directing delivery with the assistance of Taluk Surveyor for identification and a direction to produce the draft rectification deed to execute the same. Learned Munsiff should have first directed the decree holders to produce the rectification deed and thereafter execute the sale deed through court directing delivery of the property thereafter. In such circumstances, order dated 21.5.2008 is quashed. Learned Munsiff is directed to pass appropriate order in E.P.34 of 2008 after considering the objections if any filed by judgment debtors, in accordance with law. Executing court to pass orders within one month from the date of receipt of a copy of this order. M.SASIDHARAN NAMBIAR, JUDGE lgk/-