IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 21328 of 2008(L) -------------------------- AGAINST THE ORDER IN EA 73/08 IN EP 112/05 IN OS.258/1996 of MUNSIFF COURT,CHENGANNUR .................... PETITIONER: ------------ C.K.SASIDHARAN PILLAI, AGED 62 YEARS, S/O KUTTAN PILLA, VADAKKEMURI FROM PADIPPURAKKUZHIYIL THIRUVANDOOR P.O., CHENGANNUR. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN SMT.SURYA SASI RESPONDENTS: ------------- 1. K.K.RAMACHANDRA PANICKER,KIZHAKKETHIL VEETTIL, THIRUVANDOOR, CHENGANNUR, ALAPPUZHA 2. OMANAKUTTAN PILLAI, AGED 59 YEARS, VADAKKEMUIYIL VEETIL,THIRUVANDOOR, CHENGANNUR, ALAPPUZHA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.21328 of 2008 ------------------------------- Dated this the 16th July, 2008. J U D G M E N T Petitioner filed E.A.No.73 of 2008 in E.P.No.112 of 2005 in O.S.No.258 of 1996, on the file of Munsiff Court, Chengannur. Execution petition was filed by first respondent for realisation of the decree debt from second respondent. The property of the second respondent was sold in court auction and purchased by first respondent-decree holder and sale was confirmed and delivery proceedings was pending. It is at that stage petitioner filed E.A.No. 73 of 2008. This petition is filed under Article 227 of the Constitution of India for a direction to Munsiff to dispose Ext.P2 petition and not to proceed with the delivery before an order is passed in Ext.P2 petition. 2. The learned counsel appearing for the petitioner was heard. W.P.(C) No.21328 of 2008 2 3. The argument of the learned counsel is that petitioner is claiming two cents of property under a registered sale deed executed by second respondent, judgment debtor, in his favour in 1989, and when petitioner filed an application under Rule 99 of Order XXI of Code of Civil Procedure, executing court was not justified in directing delivery of the property without deciding the claim of the petitioner. 4. In the nature of the orders being passed, I do not find it necessary to issue notice to respondent. 5. There is force in the submission. Though petitioner is claiming under a sale deed executed by the second respondent, judgment debtor, his claim is under a registered sale deed of 1989. The suit was instituted later in 1996. In such circumstances, even though the petition was filed under Rule 99 of Order XXI of Code of Civil Procedure Code, prior to his dispossession, as it is the settled position that even anticipating dispossession, a person is entitled to approach the executing court, executing court should have passed appropriate orders in Ext.P2 petition before directing delivery. W.P.(C) No.21328 of 2008 3 Learned Munsiff is directed to pass appropriate orders in E.A.No.73 of 2008, in accordance with law, and proceed with the execution petition only thereafter. Petition is disposed of accordingly. M.SASIDHARAN NAMBIAR, JUDGE nj.