IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 FAO.No. 285 of 2008() ---------------------------- AGAINST THE ORDER DATED 16/10/2008 IN IA 961/2008 IN AS.21/2004 of SUB COURT, ATTINGAL .................... APPELLANT/COUNTER PETITIONER/APPELLANT : ----------------------------------------------------------- HAJIRA UMMAL, D/O. SUHARA BEEVI THARANVILA VEEDU, EDAVA DESOM & VILLAGE EDAVA P.O. BY ADV. SRI.VAKKOM N.VIJAYAN SRI. R. SURESH SMT.V.RENJU SMT.M.A.RAMITHA RESPONDENTS/PETITIONERS/RESPONDENTS 2, 3 & 5 : -------------------------------------------------------------------- 1. MUHAMMED ZAKIR,S/O. MUHAMMED SAHED RESIDING AT KAVUNGAL HOUSE, EDAVA DESOM EDAVA VILLAGE. 2. SALEENA, D/O. MUHAMMED SAHED RESIDING AT KAVUNGAL HOUSE, EDAVA DESOM EDAVA VILLAGE. 3. SAJEENA, D/O. MUHAMMED SAHED RESIDING AT KAVUNGAL HOUSE, EDAVA DESOM EDAVA VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.No. 285 of 2008 ORDER ON I.A.NO.4833 OF 2008 IN F.A.O.NO.285 OF 2008 DISMISSED 14.11.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N. KRISHNAN, J ----------------------- F.A.O.No. 285 OF 2008 --------------------------------- Dated this the 14th day of November, 2008 JUDGMENT This appeal is preferred against the order of the Subordinate Judge, Attingal in I.A.No. 961/08 in A.S. No. 21/04. It was an application filed by the respondents 2, 3 and 5 in the appeal for injunction. The defendants in the suit had preferred an appeal against the final decree in O.S. 299/90. Thereafter I.A. 806/06 was filed by respondents 2, 3 and 5 in the appeal to restrain the counter petitioners therein from causing any obstruction to the peaceful possession of the property. The said I.A. was dismissed by the Court. Against that dismissal, F.A.O. 154/07 was filed. 2. The appellate court directed the execution court to consider E.A. 104/05 and to take a decision as to whether the delivery was effected or not. It also made it very clear thereafter that just because of the dismissal of I.A. 806/06, there will not be any bar for the present petitioners therein to move an application. A reading of the entire judgment would show that an appeal has been preferred against the final decree. It is brought out in evidence that 20.791 ares of land as per Ext. C1(a) plan of the decree was delivered to F.A.O.No. 285 OF 2008 2 the possession of the petitioners/plaintiffs on 16.6.05. The appellate court passed an order staying the execution of the decree on 11.7.05. It has come out in evidence that the plaintiff had been given possession of the property by the court through Amin on 16.6.05 before the appellate court has passed an order of stay. So as things remained when there was no stay with respect to operation of execution of the decree the competent court delivered the property. The executing court ordered delivery of the property and the plaintiffs were put in possession of the property and the delivery has been recorded. It is against this situation, the appellants before me wants to dismiss the prayer for an injunction granted by the appellate court. After hearing the learned counsel and on perusal of the entire materials, the whole matter depends on actual delivery of the property. If there has been actual delivery of the property rightly or wrongly, it is under the orders of a court and as there was no taboo for that court to pass an order of delivery, since the stay order was passed by the appellate court much after date of delivery. So the plaintiffs had been put for possession of the property by virtue of an order of the Court. The contention that in the light of the dismissal of earlier application of I. A. 806/06, F.A.O.No. 285 OF 2008 3 the principles of res judicata will apply. It is not correct. The said order was appealed before this court and in that order the Court has made it very clear that the dismissal of I.A. 806/06 will not stand in the way of the plaintiff to move a fresh application after the disposal of the execution application. So the question of res judicata will not arise. The next question is whether there is proper delivery of the property or not. The executing court which was dealing with the matter has entered in to a finding that delivery has been effected and it has been recorded. When it is so, the plaintiffs are in possession of the property. The court below has granted an order of injunction protecting that possession which the plaintiff has obtained by virtue of the delivery. I do not find any mistake in such an order. The appeal totally lacks merit and it is dismissed. M.N. KRISHNAN,JUDGE vkm