IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 32177 of 2008(E) -------------------------- AGAINST THE ORDER IN EP 286/08 IN OS.240/2003 OF PRL.M.C.,ERNAKULAM .......................... PETITIONER/JUDGMENT DEBTOR/DEFENDANT: ---------------------------------------------------------------------- VIJAYAN @ VIJAYAKUMAR, S/O. SANDALAN, RESIDING AT KAVILMADOM PARAMBU, C.C. NO.41/2069, KALABHAVAN ROAD, ERNAKULAM, KOCHI – 18. BY ADV. SRI.C.J.JOY SMT.SHOBA NAIR RESPONDENTS/DECREE HOLDER/PLAINTIFFS [2-9=7(1 AND 9 DIED)]: -------------------------------------------------------------------------------------------------- 1. SANTHA SASI, W/O. SASI AND D/O. SMT. SUSEELA AND SRI. CHATHU, PLAVUNKAL PARAMBIL HOUSE, PALLIPURAM, PIN- 683 515. 2. BABY RAVI, W/O. RAVI AND D/O. SMT. SUSEELA AND SRI CHATHU, ILLATHUPARAMBIL HOUE, MARADU P.O. 3. E.C. BABU, S/O. SMT. SUSEELA AND SRI CHATHU,EDACHIRAPALLI HOUE, MARADU P.O., PIN 682 304. 4. E.C. RAMESAN, S/O.SMT. SUSEELA AND SRI. CHATHU, EDACHIRAPALLI HOUSE, MARADU P.O., PIN 682 304. 5. BINDU VIJAYAKUMAR, W/O.VIJAYAKUMAR.C.RAMESAN, D/O.SMT. SUSEELA AND SRI CHATHU, EDACHIRAPALLI HOUSE, MARADU P.O, PIN – 682 304. 6. MALATHY, W/O. LATE SUNDARAN, C.C. 41/2069, KAVILMADOM PARAMBU, KALABHAVAN ROAD, ERNAKULAM, KOCHI- 600 018. 7. ANU K. S. , S/O. LATE SUNDARAN, C.C. 41/2069, KAVILMADOM PARAMBU, KALBHAVAN ROAD, ERNAKULAM, KOCHI- 600 018. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/ 10 / 2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 32177 of 2008 ------------------------------ Dated this the 31st day of October, 2008 JUDGMENT Heard counsel for petitioner. 2. Petitioner filed O.S No.2068 of 2002 in the Munsiff's Court-I, Ernakulam for partition and other reliefs. That suit was dismissed holding that property is not partible at the instance of the petitioner since he is not a legal representative of Sandalan to whom the property originally belonged and under whom the respondents claimed title and possession on his death. Appeal preferred by the petitioner ended in dismissal. Counsel states that the judgment and decree in the appeal are challenged in this court in R.S. A No.247 of 2008. Respondents filed O.S. No.240 of 2003 in the Munsiff's Court- I, Ernakulam against the petitioner seeking mandatory injunction to direct him to vacate from the residential building in the suit property. That suit was decreed against the petitioner. Appeal also went against him. Learned counsel states that the judgment and decree in the appeal are challenged in this court in R.S. A No.200 of 2008. W.P(c) No. 32177 /2008 2 Learned counsel also states that R.S.A. Nos.200 of 2008 and 247 of 2008 are not so far admitted since the matter was sent to the Adalath for settlement. The decree in O.S. No.240 of 2003 was put in execution. Respondents filed E.P. No.286 of 2008. Petitioner preferred Exhibit P1 objection to the execution. Learned Munsiff ordered delivery of the property as per the decree. That order is under challenge. 3. Contention raised by learned counsel is that petitioner was not gave an opportunity to raise his objection in the executing court. On hearing learned counsel, I do not find any valid objection raised by the petitioner against execution so that, this court should interfere in exercise of its power under Article 227 of the Constitution. Therefore, challenge to the order for delivery cannot be sustained. 4. At this stage, learned counsel stated that petitioner is residing with family in the residential building in the suit property and that petitioner be given an opportunity to seek appropriate reliefs in the Regular Second Appeals already filed. Counsel stated that delivery is scheduled to be effected on 3/11/2008. W.P(c) No. 32177 /2008 3 5. Though, I found that petitioner had no valid objection to the execution of decree in O.S. No.240 of 2003, I consider it just and proper to give breathing time to petitioner since he has already filed Regular Second Appeals from the judgment and decree in O.S. Nos.2068 of 2002 and 240 of 2003 which went against him. In the circumstances, it is directed that learned Munsiff will defer the delivery as per order in E.P. No.286 of 2008 in O.S No.240 of 2003 to a date beyond ten (10) from today. With the above direction, this writ petition is dismissed. THOMAS P. JOSEPH, JUDGE scm