IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 35108 of 2008(D) -------------------------- AGAINST THE ORDER IN EP 56/2007. IN OS.34/1998 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): --------------- SABUKHAN, AGED 45, S/O MUHAMMED KHAN, H.NO.122, AISWARYA NAGAR COLONY, THAIKKATTUKARA, ALUVA WEST VILLAGE. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): --------------- 1. FAZALUDHEEN, V.K, AGED 43, S/O.KUNJALI, VALIYAPARAMBIL HOUSE, CHERANALLOOR KARA, CHITTOOR VILLAGE, KANAYANNUR TALUK. 2. MAYA PRATHAPAN, AGED 44, KAREETHARA HOUSE, VALLARPADAM.P.O, PANAMUKADU KARA, MULAVUKADU. 3. NOUSHAD, AGED 43 S/O.MOHAMMED KHAN KOTTAKKAKATHU HOUSE, THAIKKATTUKARA ALUVA WEST VILLAGE. 4. NABEESA, AGED 67 W/O.MOHAMMED KHAN - DO- -DO- 5. BEENA ABDUL MAJEED, AGED 48 D/O.MOHAMMED KHAN -DO- -DO- 6. ASHA NASAR, AGED 38 D/O.MOHAMMED KHAN -DO- -DO- RESPONDENTS 3 TO 6 IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 6 AS PER IA NO.2090/09 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35108/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PETITION IN EA NO.102/08 IN EP NO.56/2007 IN OS NO.34/1998 ON THE FILE OF THE MUNSIFF COURT, ALUVA. EXT.P2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN THE SAID EA28-06-2008. EXT.P3: COPY OF THE COMMISSION REPORT DATED 24.6.2006 IN OS NO.34/1998 OF MUNSIFF COURT, ALUVA. EXT.P4: COPY OF THE COMMISSION REPORT DATED 26.10.2006 IN OS NO.34/1998 OF MUNSIFF COURT, ALUVA. EXT.P5: COPY OF THE ORDER DATED 28.6.2008 IN EA NO.102/08 IN EP NO.56/2007 IN OS NO.34/98 OF MUNSIFF COURT, ALUVA. EXT.P6: COPY OF THE JUDGMENT DATED 29.8.2008 IN WP(C) NO.21317/2008 OF THIS HON'BLE COURT. EXT.P7: COPY OF THE ORDER DATED 15.11.2008 IN EA NO.102/2008 IN EP NO.56/07 IN OS NO.34/1998 ON THE FILE OF THE MUNSIFF COURT, ALUVA. EXT.P8: COPY OF THE ORDER IN EP NO.56/07 IN OS NO.34/98 ON THE FILE OF THE MUNSIFF COURT, ALUVA. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.35108 of 2008 --------------------------------------------- Dated this the 20th day of March, 2009 JUDGMENT The petitioner is the second defendant in O.S.No.34 of 1998 on the file of the court of the Munsiff of Aluva. The suit was for partition. A preliminary decree was passed. It is stated that in the final decree proceedings, all the parties agreed to auction the property among the sharers. Auction was held. The petitioner was the highest bidder. Therefore, the property was allotted to him. Final decree was passed accordingly. The petitioner filed E.P.No.56 of 2007 for delivery. At that juncture, one Fazaludheen and Maya Prathapan (respondent Nos.1 and 2) filed a claim petition as E.A.No.102 of 2008. The executing court passed an order dated 28th June 2008 directing the Amin to effect symbolic delivery of the building. It was found that the petitioners therein (respondent Nos.1 and 2 in this Writ Petition) were in occupation of the building. That order was challenged by the petitioner in W.P.(C) No.21317 of 2008. This court set aside the order passed by the executing court. The executing WPC No.35108 /2008 2 court was directed to consider the claim petition filed by respondent Nos.1 and 2 herein and pass appropriate orders. It was held that when a claim petition is filed, the matter has to be adjudicated as provided under Rule 100 of Order XXI of the Code of Civil Procedure. The executing court did not do so while passing the order dated 28th June 2008. 2. After the disposal of W.P.(C) No.21317 of 2008, the claim petitioners, who filed E.A.No.102 of 2008 did not press that application. Accordingly, that application was dismissed as not pressed. Naturally what remained was actual delivery of the property to the petitioner. However, the court below closed the Execution Petition on the ground that the counsel appearing for the petitioner herein stated that he did not have any objection to the delivery effected. The delivery effected was as per the order then in force. That order was set aside and the court below was directed to conduct an enquiry in the claim petition. The claim petition was dismissed as not pressed. The petitioner was therefore entitled to actual delivery of the property, there being no claim by any person as a tenant. The fact that the court below erroneously passed an order for symbolic delivery does WPC No.35108 /2008 3 not mean that the petitioner forfeits his right to get actual delivery. That there was no abandonment of the right is clear from the fact that the petitioner had challenged the order in W.P. (C) No.21317 of 2008. When the order passed by the executing court was set aside, the Execution Petition would revive and the prayer for actual delivery also would get revived. The court was not right in saying that symbolic delivery was effected and the counsel for the decree holder was satisfied with that and therefore, actual delivery need not be effected. 3. The order dated 15th November 2008 passed by the court below to the extent to which it is against the petitioner is set aside. The executing court shall depute an Amin to effect actual delivery of the property. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl