IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 32981 of 2006(B) ------------------------------------- AGAINST THE ORDER DATED / / IN 17/76, 18/76 IN OS.16/1976 of SUB COURT, MANJERI .................... PETITIONER: ------------------- VALLUVANATTUDAYA AYIRANAZHI KOVILAKATH SATHIAKUMARA RAJA, S/O. KUNJUKUTTY @ KUTTICHERIY- AMMA THAMPURATTY, MANJERI P.O., ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI RESPONDENTS: ------------------------ 1. M.C. CHERIYAN, S/O. M.C. CHANDY, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 2. M.C. MATHEW, S/O. M.C.CHANDY, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 3. M.C. THAMBI, S/O.M.C.CHANDY, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 4. MRS.ELIZABATH CHERIYAN, W/O. LATE M.P. CHERIAN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 5. MRS. M.C.GEORGE, W/O. LATE M.C.GEORGE, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 6. M.C. CHANDI @ BABU, S/O.LATE M.C.GEORGE, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 7. MEERA POTHEN, W/O. LATE M.C.POTHEN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 8. SAJAY, S/O.LATE M.C.POTHEN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. W.P.(C) NO.32987/2006 9. SHANAS, D/O. LATE M.C.POTHEN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 10. SHARAN, D/O.LATE M.C.POTHEN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 11. SHAREENA, D/O. LATE M.C.POTHEN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 12. SARASU POTHEN, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 13. M.C. GEORGE, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 14. OMANA SAMUEL, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 15. RAMANI KOSI, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 16. AMMINI IYPE, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. 17. AMMU MATHEW, SULTHAN BUNGLOW, MALAPARAMBA, KOZHIKODE. BY ADV. SMT.PRABHA R.MENON } SRI.M.KRISHNAKUMAR } R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32981/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE REPORT FILED BY THE AMIN IN EP. 115/98 DT. 14.11.2006. EXT.P2:- COPY OF THE REPORT FILED BY THE AMIN IN EP. 3099 DT. 14.11.06. EXT.P3:- COPY OF THE REPORT FILED BY THE AMIN IN EP. 31/99 DT. 17.11.06. EXT.P4:- COPY OF THE INTERIM REPORT SUBMITTED BY THE COMMISSIONER IN AFA. 54/97 DT. 10.2.2003. EXT.P5:- COPY OF THE FINAL REPORT SUBMITTED BY THE COMMISSIONER IN AFA. 54/97 DT. 8.1.04. EXT.P6:- COPY OF THE AFFIDAVIT IN SUPPORT OF EA. 441/06 DT. 16.11.06. EXT.P7:- COPY OF THE ORDER OF THE SUB COURT, MANJERI IN EA. 441/06 AND EA.446/06 AND EP. 115/98 IN OS. 16/76 ON ITS FILE DT. 25.11.06. /TRUE COPY/ P.S. TO JUDGE tss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No.32981 OF 2006 ----------------------------------------------- Dated this the 25th day of March, 2008 J U D G M E N T The decree holder who has been granted a decree of declaration of title and recovery of possession after a long drawn out legal battle which had reached even the apex court, is aggrieved by Ext.P7 order of the Execution court dismissing an application filed by him for orders directing the Amins who had been entrusted with the task of effecting delivery to take the assistance of the police in the matter of effecting delivery. Three suits, OS. Nos. 16/76, 17/76 and 18/76 were filed by the plaintiffs as members of Valluvanattudaya Ayiranazhi Kovilakam and the writ petitioner is the 20th plaintiff in all the three suits. According to the plaintiffs, the plaint schedule properties in all the three suits belong to the Kovilakam and the defendants who are owners of a rubber plantation by name Kerala Estate, had trespassed into and reduced these properties to their possession and planted rubber and other crops in these properties. Trial court decreed all the three suits declaring the title of the plaintiffs and directing recovery of possession of the plaint schedule properties along with damages for use and occupation. But the trial court also found that the defendants are entitled for value of improvements. Three appeals were preferred WP(C)N0.32981/06 -2- by the plaintiffs and three appeals were preferred by the defendants. Plaintiffs' appeal were confined to the decree awarding value of improvements. This court by judgment dismissed the appeals filed by defendants and allowed the appeals filed by plaintiffs setting aside the decree awarding value of improvements. Though AFAs were preferred against the decree of this court in the appeals, the AFAs were dismissed. Special leave petitions filed against these decrees before the Supreme Court were also dismissed and thus decree passed by this court in favour of the plaintiffs were confirmed. Separate execution petitions were filed for executing the decrees. Delivery warrants were issued in all the three execution petitions. Because of some objections raised by the judgment debtors Amins were unable to execute the warrant on 30-8-2006 and 30-9-2006 when the Amins went over the property for effecting delivery. The decree holders filed application before the execution court to afford police protection to the Amins but that application was not allowed. Thereafter Amins against went to the property for executing the warrant on 19-10-2006. On that day some persons allegedly at the instance of the judgment debtors raised objections regarding the execution of the delivery warrant. It is stated that these persons were not raising any independent claims, but were claiming rights only through the WP(C)N0.32981/06 -3- judgment debtors. No documents were shown by them to to the Amin to support their claims, but the Amin went back without executing the warrant and Ext.P1 is copy of the report submitted by the Amin in EP. No. 14/98 in OS. No. 16/76. Ext.P2 is copy of the Amin's report in E.P.30/99 in OS. 17/96 and Ext.P3 is copy of the Amin's report in E.P.31/99 in O.S.18/76. On going through Ext.P1 it is seen that some 14 persons named therein had obstructed the Amin and as per Ext.P2, 24 persons named therein were the obstructors and Ext.P3 mentions the names of 39 persons as the obstructors. According to the Amin he was informed by the obstructors that the properties sought to be delivered were in the possession of the obstructors. They claimed that they are having document with them and that for identifying the properties he would require the assistance of the village officer or the surveyor and it was likely that untoward incidents will occur if he attempted to effect delivery ignoring the obstructions. The petitioner submits that during the pendency of the AFA before this court an advocate commissioner had been appointed by this court for identifying the suit properties and the petitioner has produced Ext.P4 interim report of the commissioner in the AFA and Ext.P5 final report to show that there is no scope for any dispute regarding identity of the decree schedule properties. After the Amin filed Exts.P1 to P3 reports WP(C)N0.32981/06 -4- the petitioner filed Ext.P6 E.A. for directing the Amin to effect delivery of the properties with the assistance of the police. Passing common order Ext.P7 execution court dismissed P6 E.A. as well as E.A.446/06 filed by the judgment debtors. Prayer in E.A.446/06 filed by the judgment debtors was that an advocate commissioner be appointed for accompanying the Amin for monitoring the mode of execution since the judgment debtors apprehend excess delivery of their properties which are lying near to the decree schedule property. The only reason stated for dismissing E.A.446/06 is that since EA.441/06 is being dismissed there is no reasonable ground for any apprehension in the mind of the judgment debtors that there will be excess delivery. 2. I have heard the submissions of Sri.T.Krishnan Unni, learned Senior Counsel for the petitioner and Sri. A.P.Chandrasekharan, learned Senior Counsel for the respondents. Sri.Krishnan Unni submitted that the so called obstructionists cannot have any valid claims over the decree schedule property. They have not produced any document before the Amin. Exts.P4 and P5 rules out any confusion regarding the identity of the village in which the decree schedule properties are situated. Those reports will also show that in 2003 the judgment debtors alone were in possession of the property. Therefore if at all the obstructors have come to be in possession they are only WP(C)N0.32981/06 -5- transferees pendente lite who are not entitled to raise any obstruction. The question whether the obstructors are raising any independent claim over the property was not considered. That most crucial question has not been addressed by the execution court at all. Learned senior counsel submitted that execution court has attached undue significance to the circumstance that police officers were present at the spot on 19-10-2006 when the Amin went over to the property for effecting delivery though the application for rendition of police assistance had been declined by the court. Counsel submitted that on account of the very high influence wielded by the judgment debtors who could command any amount of men and muscle power. The decree holders who were afraid to go to the spot for helping the Amin, sought for police help, so that the police will afford personal protection to them. Learned Judge should not have been provoked because of this. Mr. Krishnan Unni also submitted that the learned Subordinate Judge also appears to have been antagonized in that the judgment of this court in Moidu v. Parthasarathy and others, 1991(1) KLJ 497 was cited by the “senior most member of the Bar” who was appearing for the decree holders though the same had been overruled by the subsequent judgment in Padmaja v. Sajeev, 2006(1) KLT 265. Because of that displeasure the learned Judge forgot that as an WP(C)N0.32981/06 -6- execution court he had the duty to make every endeavour to secure for the decree holders the fruits of the decree which they had obtained after a long drawn out legal battle which had reached even the Apex Court. Several decisions were cited by Mr.Krishnan Unni in support of his submissions. The judgment of the Supreme Court in P.Janardhana Rao v. Kannan and others, 2004 SAR (Civil) 945 was relied on by the learned senior counsel in support of the argument that the crucial question in an application under Order 21 rule 97 or when obstructions are made is whether the obstructor is claiming independent right or whether there was any evidence to show that the obstructor is in possession of the decree premises prior to the filing of the suit. Mr.Krishnan Unni also relied on the judgment of the Supreme Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust, AIR 1998 SC 1754 to explain the scope of the power of the execution court to remove obstruction under Order 21 Rule 97 and argued that the obstructors should have come to the court, The counsel pointed out that the circumstance that they have not chosen to do so will indicate that they are acting at the behest of the judgment debtors. The judgment of the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 was also meticulously analysed by Mr.Krishnan Unni who was able to distinguish the facts of the present case from those in that case. The WP(C)N0.32981/06 -7- counsel argued that the ratio emerging on a reading of the full text of the judgment is that obstructions by persons who do not been claim independent right over the decree schedule property do not warrant full fledged adjudication. Mr.Krishnan Unni would cite judgment in Padmaja v. Sajeev, 2006(1) KLT 265 and would also read over to me the judgment in 1991(1) KLJ 497. 3. Sri.A.P.Chandrasekharan, senior counsel for respondent would support the impugned order. Learned counsel would argue that the law is settled by the judgment of the Supreme Court in AIR 1997 SC 856 that when strangers are in possession of the property they are liable to be evicted from the properties sought to be delivered in execution before their rights are adjudicated by the execution court in a proceeding under order 21 rule 97. Directing summary eviction with the assistance of the police will mean eviction without any adjudication regarding the rights of the obstructing persons. There is no warrant at all for correcting the impugned order either under the certiorari jurisdiction of this under Article 226 or under the supervisory jurisdiction under Article 227. The impugned order according to the learned senior counsel was a well reasoned one supported by a judgment of the Supreme Court. 4. I have anxiously considered the rival submissions addressed WP(C)N0.32981/06 -8- at the Bar. It is true that as per Exts.P1, P2 and P3 reports the Amin has reported that certain named persons have raised obstructions raising dispute regarding the identity of the properties i.e., regarding the village in which the decree schedule properties are situated. But the court below should have seen that apart from claiming that they are having documents in their possession to show that the decree schedule properties are possessed by them they did not even show those documents to the Amin. It is also to be noticed in this context that Exts.P4 and P5 reports submitted by the Advocate Commissioner appointed by this court in AFA will reveal that there is no scope for any confusion regarding the identity of the properties and particularly the village in which the decree schedule properties are situated. Going by those two reports the properties were in the possession of the judgment debtors themselves at that time i.e., in 2003. If at all anybody else has come into physical possession of the properties thereafter their status in relation to the properties can only be that of transferees pendente lite who will also be bound by the decree. In short the execution court should have noticed that the contention of the petitioner decree holder that the so called obstructors cannot have any legal sustainable claims over the properties in question warranting a full fledged adjudication had considerable force. I do not propose to WP(C)N0.32981/06 -9- say that the execution court should have straight away allowed Ext.P6 application; But in the circumstances which attended on this case the court below could have directed the persons mentioned in the reports of the Amin to produce within a short time frame the documents on the basis of which they were claiming title or possession over the decree schedule property so that it can be ascertained whether their claims will independent of the judgment debtors or under the judgment debtors. A full fledged adjudication in my opinion is warranted in the circumstances of this case only if there was some convincing material to show that the obstructionists have claims independent of the judgment debtors. This litigation has been more than three decades old and was fought by the judgment debtors up to the Supreme Court. Execution court should have remembered that its duty was to ensure that the decree is executed and the decree holder secures the fruits of the decree at the earliest. I am of the view that considerations of justice require that the impugned common order be set aside the E.A. and EA. No.446/06 filed by the respondent be disposed of issuing fresh directions in the following terms. 1. The execution court will issue notice to the various obstructors mentioned in Exts.P1 to P3 reports submitted by the Amin forthwith calling upon them to produce before the court by a date mentioned in WP(C)N0.32981/06 -10- the notice the document or documents on the basis of which they claim title or possession over the decree schedule properties or portions thereof. 2. Simultaneously the execution court will also permit the decree holders to take out a public notice inviting anybody else who wants to resist the prayers in the execution petition to do so, and also directing them to produce the documents to support of their grounds of resistance. 3. Once documents are received in response to the above notice the execution court will hear the parties and determine whether there is any scope for any further enquiry into the claims having due regard to the first principle that transferees pendente lite will be bound by the decree and that only independent claims need be adjudicated. If that issue is decided in favour of the decree holders the Execution Court will issue delivery warrant to the Amin after directing police officials concerned to render assistance to the Amin and will also appoint Advocate Sri.K.K.Chandran Pillai, Advocate of this Court who submitted Exts.P4 and P5 reports if he is willing, as commissioner for monitoring the delivery process. If the services of Advocate Chandran Pillai is not available, the court will direct the Amin to effect delivery with the aid of Ext.P4 and P5 also and under such a contingency will WP(C)N0.32981/06 -11- also issue proper directions to the Village Officer, Kalikavu to be present along with the Amin while effecting delivery. If Sri.Chandran Pillai's services are not available, a senior member of the Bar will be appointed by the court for monitoring the delivery process. Considering the years that have passed since the litigation commenced, the execution court will expedite matters keeping in mind that litigant public will come to loose faith in the civil justice delivery system unless the court is able to secure for decree holders fruits of the decrees passed by civil courts within a reasonable time. (PIUS C.KURIAKOSE, JUDGE) ksv/