IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 2061 of 2010(O) ------------------------- {IN EA.702/2007 IN OS.37/1979 OF THE 1ST ADDL.SUB COURT, KOZHIKODE} .................... PETITIONER(S): --------------- 1. P.C.KUNHETTAN RAJA, S/O.NARAYANAN NAMBOOTHIRI, AGED 84 YEARS, TALI, SREENILAYAM PALACE, KASABA AMSOM DESOM, KOZHIKODE. 2. N.A.RADHA KOVILAMMA, W/O.P.C.KUNHETTAN RAJA, TALI, SREENILAYAM PALACE, KASABA AMSOM DESOM, KOZHIKODE. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.J.R.PREM NAVAZ SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. P.K.KRISHNANUNNI RAJA, MANAGER, ZAMORIN'S HIGH SCHOOL, TALI, SREENILAYAM PALACE, KASABA AMSOM DESOM, KOZHIKODE. 2. THE AMIN (DEPUTY FOR DELIVERY IN EP 192 OF 2006) SUB COURT, KOZHIKODE. BY ADV.SRI.M.C.SEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------------------------ W.P.(C).No.2061 of 2010 ----------------------------------------------- Dated this the 21st day of January, 2010 JUDGMENT The writ petition is filed seeking the following reliefs: i. To call for the records leading up to Exhibit P5 and P5(a) and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii. To issue a writ of mandamus restraining the second respondent from executing the decree in O.S.No.37 of 1979 without identifying the properties properly either by measurement or by extent. iii. To issue a writ of mandamus forbearing the respondents from continuing with the execution proceedings in O.S.No.37 of 1979 further, until the property sought to be delivered are properly identified and earmarked and determined in terms of the decree passed. iv. To issue such order writs, orders or directions as this Hon'ble Court may W.P.(C).No.2061 of 2010 :: 2 :: deem fit and proper in the circumstances of the case.” 2. The petitioners are the judgment debtors in E.P.No.192 of 2006 in O.S.No.37 of 1979 on the file of the Sub Court, Kozhikode. Negativing the objections canvassed by the petitioners/ judgment debtors that the decree schedule property is not identifiable, the execution court has ordered for delivery of that property to the respondents/decree holders. However, the Amin deputed for effecting delivery, filed a report before the court that the decree scheduled property is not identifiable. Thereupon, the respondents/decree holders moved an application under Order XXI Rule 35 of the Code Civil Procedure for orders/directions from the court to the Amin to effect delivery, contending that there is no merit in the report of the Amin that the property is not identifiable. The execution court, W.P.(C).No.2061 of 2010 :: 3 :: thereupon, has passed Ext.P5(a) orders directing the Amin to effect delivery. 3. Previously, the judgment debtors have moved an application for appointment of a commission to identify the decree scheduled property. That application was considered, along with another application moved by the decree holder and by a common order, Ext.P5, the application of the judgment debtors for appointing a commission was turned down. Propriety and correctness of Exts.P5 and P5(a) orders are challenged in the writ petition by the judgment debtors, invoking the supervisory jurisdiction vested in this court under Article 227 of the Constitution of India. 4. The respondents/ decree holders have entered appearance through counsel. 5. I heard counsel on both sides. W.P.(C).No.2061 of 2010 :: 4 :: 6. Exts.P5 and P5(a) orders are assailed by the learned counsel for the judgment debtors/petitioners contending that the execution court has grossly erred in directing for effecting delivery without fixing the identity of the decree scheduled property to be delivered over. A subsequent suit filed by the decree holders for declaration of their title and possession and fixation of the identity over the property, after excluding the decree scheduled property in the present suit, according to the counsel, had been dismissed and that was also a circumstance indicating that, without proper identification, the decree in the present case is inexecutable. 7. On the other hand, learned counsel for the respondents submitted that the very same challenge had been pressed into service on the trial side and W.P.(C).No.2061 of 2010 :: 5 :: even in the second appeal that the property covered in the suit, the recovery of which was sought for, was not properly identified and such challenges have been turned down. The challenge now raised canvassing a case that the identity of the decree scheduled property has to be fixed in execution is nothing but a frivolous attempt to protract the execution proceedings and deny the fruits of the decree to the decree holder, is the submission of the learned counsel for the decree holders. 8. On perusing Exts.P5 and P5(a) orders, it is seen that in the appeal preferred against the decree challenged against the identity of the property was canvassed and it was found to be meritless. It is apparent from a perusal of Ext.P5(a) order that the decree scheduled property is a building and its appurtenant premises. It appears, W.P.(C).No.2061 of 2010 :: 6 :: the number of the building, at the time of filing of the suit, stated in the plaint and, also in the decree, which had undergone change later in point of time, has been canvassed by the judgment debtors to resist the execution of the decree, and it was repelled by the execution court. When the trial court and the appellate court have gone into the disputes canvassed over the identity of the property and found no merit in the case so canvassed, it is futile on the part of the judgment debtor to canvass the very same contention in execution; and, such a challenge, in fact, cannot be entertained by the execution court. It is also seen from Ext.P5 that previously also the execution court has passed orders for the delivery of the property negativing the contention raised by the judgment debtors that the identity of the property has to be fixed before W.P.(C).No.2061 of 2010 :: 7 :: effecting delivery. Ext.P5 order would disclose that the execution court has taken note of every objection canvassed by the judgment debtors with respect to the dispute canvassed on the identity raising the question of identification of the decree scheduled property and found them to be worthy of no merit. I find no impropriety or illegality in Exts.P5 and P5(a) orders passed by the execution court. The writ petition lacks merit and it is accordingly dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy// P.S. to Judge.