IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 OP(C).No. 4165 of 2011(O) ------------------------- IA NO.4065/2011 IN UN-NUMBERED APPEAL OF 2011 OF PRINCIPAL DISTRICT JUDGE, THRISSUR. AS.437/2008 of DISTRICT COURT, THRISSUR OS.1414/2006 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): -------------------- C.P.JOHNY, AGED 53 YEARS S/O.CHOONDAL PORINJU, RESIDING AT CHOONDAL HOUSE NELLIKKUNNU, THRISSUR 680005. BY ADV. SRI.P.PUSHPARAJAN SRI.SREEVALSAN.V RESPONDENT(S): --------------- 1. THRISSUR CORPORATION REPRESENTED BY ITS SECRETARY CORPORATION BUILDINGS, THRISSUR PIN 680001. 2. E.A. JOSE (NO MORE) S/O. ELUVANTHINGAL ANTHONY CHEMBUKKAVU DESOM, VILLAGE, THRISSUR TALUK PIN 680020. 3. P.T.WILSON, AGED 46 YEARS S/O.THIMMATHI, PUTHEN VEETTIL HOUSE JESUS STREET, KURIACHIRA DESOM,CHIYYARAM VILLAGE THRISSUR TALUK, PIN 680 006. 4. K.K.JOHNSON, AGED 48 YEARS S/O.KUNJUVAREETH ,KUNDUKULANGARA HOUSE ADATT DESOM, VILLAGE, THRISSUR TALUK PIN 680 551. 5. ANNAKUTTY JOSE, AGED 65 YEARS W/O.E.A. JOSE, CHEMBUKKAVU DESOM VILLAGE, THRISSUR TALUK, PIN 6800020. 6. ANTO, S/O E.A. JOSE, AGED ABOUT 45 RESIDING AT CHEMBUKKAVU DESOM VILLAGE, THRISSUR TALUK, PIN 6800020. OP(C) NO.4165/2011 2 7. WINSON ALIAS JOY, AGED 40 S/O.E.A. JOSE,RESIDING AT CHEMBUKKAVU DESOM VILLAGE, THRISSUR TALUK, PIN 6800020. 8. JILSA, D/O. E.A. JOSE, AGED 36 RESIDING AT CHEMBUKKAVU DESOM VILLAGE, THRISSUR TALUK, PIN 6800020. R1 BY ADV. SHRI KODOTH SREEDHARAN R3 TO R8 BY ADV. SHRI P.B.KRISHNAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP9C)NO.4165/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF the DECREE OS.1414/2006 DT.31.01.2006 DT.31.1.2008. EXT.P2 TRUE COPY OF the ORDER IA.3870/2008 DT.12.10.2010. EXT.P3 TRUE COPY OF THE JUDGMENT IN AS/437/2008 DT.12.10.2010. EXT.P4 TRUE COPY OF THE ORDER IA.1947/2011 IN UNNUMBERRED RSA.2011 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.4165 of 2011 -------------------------------------- Dated this the 22nd day of December, 2011. JUDGMENT This Original Petition is filed by the appellant in an un-numbered appeal of 2011 filed before learned Principal District Judge, Thrissur with an application for leave since petitioner is not a party to the decree from which that appeal is preferred. The issue concerns allottment of certain rooms to the deceased 1st plaintiff and respondents 3 and 4 by the 1st respondent - Corporation of Thrissur. Challenging the allottment petitioner preferred an Original Petition in this Court. In the meantime the trial court had granted a decree in favour of deceased 1st plaintiff and respondents 3 and 4 and directing the 1st respondent to allot five rooms to them. This Court in the Original Petition observed that proper remedy of petitioner is to challenge that decree in appeal. It is pursuant to that observation, petitioner preferred the unnumbered appeal with application to condone the delay and seeking leave. 2. Opposing the application to condone the delay respondents 3 to 8 filed counter. They contended that version of petitioner that he learnt about the decree only on the day mentioned in the affidavit in support of the application is not correct and that records available with the 1st respondent would show that petitioner was aware of the decree under challenge even prior to that day. Respondents 3 to 8 wanted to summon those documents to prove that OP(C)No.4165/2011 2 contention and to keep in abeyance hearing of the application to condone the delay. Learned District Judge directed that the application preferred by respondents 3 to 8 for summoning the documents will stand in abeyance. In the meantime learned District Judge proceeded with the application to condone the delay. The 3rd respondent approached this Court with O.P.(C) No.4014 of 2011. This Court, dispensing notice to the petitioner and 1st respondent directed learned District Judge to adjourn hearing of the application for condonation of the delay (I.A.No.4065 of 2011) to a day after 01.01.2012 so that the 3rd respondent could obtain certified copies of necessary documents and produce the same before learned District Judge. 3. Petitioner has approached this Court with this Original Petition contending that in view of the direction made in the judgment in O.P.(C) No.4014 of 2011 learned District Judge was not able to condone the delay and the application for stay filed in the un-numbered appeal and in the meantime, respondents 3 to 8 have filed petition for execution of the decree and are trying to get delivery of the rooms in question. Prayer in this petition is to issue a direction to the learned Additional Munsiff-II, Thrissur (where the decree in O.S.No.1414 of 2006 is being executed) to keep in abeyance all the proceedings in execution until disposal of I.A.No.4056 of 2011 (I am told that the correct number is I.A.No.4065 of 2011) in the un-numbered appeal pending before the learned District Judge. OP(C)No.4165/2011 3 4. Learned counsel for petitioner submits that judgment and decree in O.S.No.1414 of 2006 are obtained by fraud and collusion which is apparent on the face of records and which petitioner will be able to establish in the appeal preferred before learned District Judge. According to the learned counsel, fraud and collusion vitiated judgment and decree and rendered it a nullity and hence it cannot be enforced. 5. Learned counsel for respondents 3 to 8 contend that as per the case of petitioner, he was evicted from one room (which is not specified) belonging to the 1st respondent pursuant to the decision of the then Municipal Council and there was a decision to rehabilitate petitioner and 11 others. Later, on 20.11.2000 the 1st respondent (which by then became a Corporation) decided to cancel the allottment in favour of petitioner and others and they were forcibly evicted. According to the learned counsel, claim of petitioner at best can only be in respect of a room and hence there is no need to stall execution in respect of five rooms allotted to the 1st plaintiff and respondents 3 and 4 by the decree in question. 6. Having heard learned counsel on both sides I am inclined to think that for the time being some arrangement has to be made as per which right which the petitioner claims can be protected until learned District Judge passes appropriate orders on the application for stay in case the delay is condoned and appeal is received. The question whether judgment and decree in O.S.No.1414 of 2006 are liable to be set aside on the ground of fraud and collusion as OP(C)No.4165/2011 4 pleaded by petitioner is a matter which the learned District Judge can decide in case he decides to admit the appeal. Hence it is not necessary to go into that question in this proceeding. Resultantly this Original Petition is disposed of as follows: i. It is directed that one out of the five rooms allotted to the 1st plaintiff (whose legal representatives are respondents 5 to 8) and respondents 3 and 4 shall be kept vacant by the 1st respondent pending decision of learned District Judge in the application for stay (in case the appeal is taken on file). ii. It is made clear that if other four rooms are put in the possession of respondents 3 to 8, it will be subject to the ultimate decision of the appeal (in case learned District Judge decides to admit that appeal). iii. The contentions which petitioner has urged before me as to the validity of judgment and decree in O.S.No.1414 of 2006 can urge before learned District Judge in appeal if law enables him to do so (in case the appeal is taken on file). THOMAS P.JOSEPH, Judge. cks