IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 17546 of 2010(O) -------------------------- OS.486/2005 of II ADDL.MUNSIFF COURT, TRIVANDRUM .................... PETITIONER: --------------- THE VICAR, JERUSELAM MARTHOMA CHURCH, NANTHANCODE, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: --------------- 1. MAMMAN THOMAS, MILL CREST GROVE, T.C.11/1297, NANTHENCODE, THIRUVANANTHAPURAM. 2. KURIAN EAPEN THOMAS, ELIA HOUSE T.C.11/1297, NANTHENCODE, THIRUVANANTHAPURAM. 3. SARAMMA ABRAHAM, NELLUMOOTTIL GRACE HOUSE, SREEMULAM MARKET, ADOOR. 4. THOMAS THOMAS, P.B.NO.1005, UMATATE, TRANSKEE, PIN 5100, SOUTH AFRICA, FROM ALI HOUSE, NANTHENCODE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17546 of 2010 --------------------------------------- Dated this 07th day of June, 2010 JUDGMENT Respondents obtained decree for eviction of petitioner/judgment debtor No.2 and others from the suit property in O.S.No.486 of 2005 and launched execution by filing E.P.No.379 of 2006. Judgment debtor No.2 preferred objection stating that building referred to in plaint schedule is situated in the city of Trivandrum, eviction can only be under provisions of Act 2 of 1965 and that decree passed by civil court for eviction is nullity. Learned counsel has placed reliance on the decision in Sushil Kumar Mehta Vs. Gobind Ram Bohra (1990 (1) SCC 193) to contend that the decree is a nullity. He raised objection to the executability of decree also on the ground that a school is functioning in the building in the suit property and provisions of the Kerala Education Rules would prevail. Ext.P2 is the objection preferred by petitioner. Ext.P5 is the affidavit filed by his counsel highlighting the circumstances which according to the petitioner indicated that the decree is a nullity. Complaint of petitioner is that without considering Exts.P2 and P5, property is going to be delivered over to the decree holders. Petitioner therefore seeks W.P.C.No.17546 of 2010 : 2 : direction to dispose of Exts.P2 and P5 before delivery is effected. 2. It is not necessary for me to go into the correctness or otherwise of the objection raised by petitioner in Ext.P2. The request is only that executing court before ordering delivery has to consider the objection and pass orders. Having regard to the facts and circumstances I direct the executing court to consider Exts.P2 and P5 before delivery is effected and pass appropriate orders. The writ petition is disposed of accordingly. (THOMAS P JOSEPH, JUDGE) Sbna/-