IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 28462 of 2009(O) -------------------------- OS.191/1990 of MUNSIFF COURT, PEERUMEDU .................... PETITIONER: --------------- P.A.JACOB, AGED 67 YEARS, S/O.LATE P.O.ABRAHAM, PROPRIETOR, M/S.POABS ENTERPRISES, KUTTOOR P.O. THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. MR.N.JAMES KOSHY RESPONDENTS: --------------- 1. RAM BHADOOR THAKUR LTD, ADMINISTRATE OFFICE OF SIDHARTHA BUILDINGS, 2ND MAIN ROAD, WILLINGDON ISLAND, COCHIN, REGISTERED OFFICE AT JITHWARPURKOTHI, SAMSTHIPURA DISTRICT FROM LAKORIASARA, DEBANGA DISTRICT, BIHAR STATE. 2. SARAMMA OUSEPH, AGED 80 YEARS, W/O.OUSEPH OUSEPH, PUTHENVEETTIL, NELLIKKAI ESTATE, VANDIPERIYAR P.O., PERIYAR VILLAGE. 3. K.M.KURUVILA, PUTHEN VEETTIL, NELLIKKAI ESTATE, VANDIPERIYAR P.O., PERIYAR VILLAGE. 4. ANNAMMA KURUVILA, D/O.SARAMMA OUSEPH, PUTHEN VEETTIL, NELLIKKAI ESTATE, VANDIPERIYAR P.O., PERIYAR VILLAGE. 5. P.O.MATHEW, S/O.SARAMMA OUSEPH, PUTHEN VEETTIL, NELLIKKAI ESTATE, VANDIPERIYAR P.O PERIYAR VILLAGE. 6. E.K.JOSEPH, S/O.KURIAN, SON-IN-LAW OF SARAMMA OUSEPH, PUTHEN VEETTIL, NELLIKKAI ESTATE, VANDIPERIYAR P.O, PERIYAR VILLAGE. MR. E.K.JOSEPH, R6 - PARTY IN PERSON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28462 of 2009 - O --------------------------------- Dated this the 28th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records of the case and to set aside Exhibit P7 order of the Munsiff Court, Peerumed in E.A.No.32/2009 in E.P.No.2/2001 in O.S.No.191/1990. ii) Allow Exhibit P5 application of E.A.No.32/2009 in E.P.No.2/2001 of the Munsiff Court, Peerumedu and to permit the petitioner to be impleaded as additional decree holder and to proceed with the execution petition. iii) Direct the Munsiff Court, Peerumedu to implead the petitioner as additional decree holder and allow him to adduce evidence to establish his right of ownership and possession over the decree schedule properties.” 2. Petitioner has filed an application in the execution proceedings in E.P.No.2 of 2001 on the file of the Munsiff Court, Peerumedu for getting himself impleaded as an additional decree holder to proceed with the execution of the decree passed in O.S.No.191 of 1990 which was a suit for declaration of title, W.P.(C).No.28462 of 2009 - O 2 perpetual prohibitory injunction and recovery of possession. Suit property formed part of Nellikkai Estate belonging to the decree holder company and, later, major portions of that estate had been purchased by the petitioner in a revenue sale towards the arrears of provident fund dues of the decree holder company and the suit property formed part of the properties sold to him, was the case of the petitioner. An application was filed by the petitioner under Sections 47, 141, 146 and 151 r/w Order I Rule 10(2) of the Code of Civil Procedure. Notice being given to the judgment debtors, the fifth defendant/present sixth respondent in the original petition appeared and filed objections. The learned Munsiff after hearing both sides passed Ext.P7 order holding that the application moved by the petitioner is not entertainable and accordingly it was dismissed. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Pursuant to notice given sixth respondent has appeared in person. I heard the learned counsel for the petitioner and also the sixth respondent, party-in-person. W.P.(C).No.28462 of 2009 - O 3 4. At the time of hearing the learned counsel for the petitioner submitted that though wrong provisions have been quoted in the application moved, it should have been construed as an application filed under Section 146 and Order XXII Rule 10 of the Code of Civil Procedure. The court below without examining those aspects, but, entering some findings on merits as to whether the decree schedule property formed part of the property sold to the petitioner dismissed his application, according to the counsel. If the application is construed as one that has been filed under Order XXII Rule 10 of the Code of Civil Procedure, learned counsel for the petitioner submits that it is open to him to challenge Ext.P7 order by way of an appeal as provided under Order XLIII Rule 1(l) of the Code of Civil Procedure. I find some force in the submission made by the counsel for the petitioner as he has claimed right over schedule property by virtue of a revenue sale. Whatever be the merits of his case for proceeding further with the execution of the decree, it appears, on the facts presented his application should have been considered as one which has been filed under Section 146 and Order XXII Rule 10 of the Code of Civil Procedure. That W.P.(C).No.28462 of 2009 - O 4 being the case, it is open to the petitioner to challenge the correctness of Ext.P7 order by way of an appeal. So reserving the right of the petitioner to canvass the correctness of Ext.P7 order as provided law, irrespective of the wrong provisions quoted in his application moved before the court below, the writ petition is closed. Time during which the petitioner prosecuted the writ petition before this Court shall be taken note of to extend exemption for such period, as provided under Section 14 of the Limitation Act, by the court before which appeal, if any, is preferred, provided such appeal is filed within a period of 15 days from the date of disposal of this writ petition. Writ petition is closed with the above observations. S.S.SATHEESACHANDRAN, JUDGE. bkn/-