IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 24681 of 2006(L) -------------------------------------- E.P. NO.21/01 IN OS.164/1989 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): ------------------------ 1. UNNIANKUTTY, S/O. MUHAMMED ALIAS KUNJAPPU HAJI. 2. MUHAMMEDALI, S/O. MUHAMMED ALIAS KUNJAPPU HAJI. 3. YUSUF, S/O.MUHAMMED ALIAS KUNJAPPU HAJI ALL ARE RESIDING AT THACHANATTUKARA AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADVS.MR.V.CHITAMBARESH MR.T.C.SURESH MENON MR.SREEKANTH.K.R MR.SREEKANTH.K.R MR.JIBU P THOMAS MR.SUNIL J.CHAKKALACKAL RESPONDENT(S): ------------------------- 1. NABEESA UMMA, D/O. MUHAMMED ALIAS KUNJAPPU HAJI. 2. AYISHA UMMA, D/O. MUHAMMED ALIAS KUNJAPPU HAJI. BOTH ARE RESIDING AT THACHANATTUKARA AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. R1 & R2 BY ADV. MR.SANTHEEP ANKARATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24681/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EP. 21/01 IN OS. 164/1989 SUB COURT, OTTAPPALAM DTD. 16.2.01. P2:- COPY OF THE OBJECTION IN EP. 21/01 IN OS. 164/89 DTD. 21.10.05. P3:- COPY OF THE ORDER PASSED IN EP. 21/01 IN OS. 164/89 DTD. 16.8.06. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.C No.24681 OF 2006 -------------------------------- Dated this the 22nd day of February 2010 JUDGMENT Petitioners are defendants 1, 2 and 4 in O.S No.164 of 1989 on the file of Sub Court, Ottapalam. Suit was one for partition in which a preliminary decree was passed allotting the plaintiffs 36/336 shares, Defendants 1 to 4, each of them, 36/336 shares, defendants 5 to 8, each of them, 18/336 shares and 10th defendant 84/336 shares in the suit property. The 10th defendant, the father of the plaintiffs and also other defendants, passed away after the passing of the final decree in the suit. On his death, 4th defendant in the above suit instituted a fresh suit O.S No.175 of 2006 for partition of the property belonging to the deceased father under the preliminary decree in the earlier suit. In the preliminary decree 10th defendant's share had been allotted jointly with plaintiffs, defendants 3, 5 to 8 and 10. In the suit instituted by the 4th defendant as plaintiff O.S No.175/2006, the properties which had been jointly allotted to the above persons have been scheduled to claim partition. A preliminary decree has been passed in the subsequent suit allotting the plaintiff therein 56/9112 shares in the suit property; some other sharers have also been allotted shares under that preliminary decree. When delivery was applied for, in terms of the decree passed under W.P.C No.24681 OF 2006 Page numbers O.S No.164/1989, it was resisted by defendants 1, 2 and 4 in that suit on the basis of the preliminary decree passed in O.S No.175/2006. Delivery was objected on the ground that they are also legal heirs of deceased 10th defendant and so much so, actual physical delivery cannot be given in favour of the plaintiffs, defendants 3, 5 and 8 as they had been given a joint allotment with deceased 10th defendant. Negativing the objection, the execution court ordered for allotment in favour of the above claimants. Challenging that order, the writ petition has been filed before this court. After the passing of order of delivery by the court below which remain stayed under interim orders in the present writ petition, the subsequent suit O.S No.175/2006 was instituted and it gave raise to the preliminary decree allotting shares to the parties as indicated earlier. 2. I heard the counsel on both sides. Perusing the impugned order with reference to the submissions made by the counsel on both sides and taking note of the facts and circumstances involved in the case, I find, the objection canvassed by the writ petitioners/defendants 1, 2 and 4 to resist the delivery on the basis of the decree passed in O.S No.164/1989 cannot be sustained. The right which had devolved upon them on the death of 10th defendant which now has crystallized under the preliminary decree in the subsequent suit O.S No.175/2006, no W.P.C No.24681 OF 2006 Page numbers doubt, has to be worked out in appropriate proceedings in continuation of the preliminary decree passed in that suit. Subject to the entitlement of the plaintiff in O.S No.175/2006 to have division of his share as determined in the preliminary decree under that suit, in continuation of the proceedings from that decree as provided by law, the order of delivery passed in the execution of decree in O.S No.164/1989 has to be given effect to. Subject to the above directions, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN JUDGE //true copy// P.A TO JUDGE vdv