IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 CRP.No. 371 of 2011() --------------------- AGAINST THE ORDER DATED 21/07/2011 IN EP 176/1998 IN OS.271/1981 of THE COURT OF PRL.MUNSIFF, KASARAGOD .................... REVN. PETITIONER(S): RESPONDENTS 5 TO 9 --------------------------------------- 1. JANAKI, W/O. LATE RAGHAVAN, R/AT MUNDAKAI HOUSE, BOVIKKANAM IN MULIYAR VILLAGE OF KASARAGOD TALUK AND DISTRICT, P.O.MULIYAR. 2. PRAMEELA, D/O. LATE RAGHAVAN, R/AT -DO- -DO- 3. SHYAMALA, D/O. LATE RAGHAVAN, R/AT -DO- -DO- 4. SINDHU, D/O. LATE RAGHAVAN, R/AT -DO- -DO- 5. PRASHANTH, S/O. LATE RAGHAVAN, R/AT -DO- -DO- BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S): (PETITIONERS/DECREE HOLDERS/JUDGMENT DEBTORS 10 TO 12 ----------------------------------------------------------------- 1. SABIRAN, WIDOW OF MOHAMMED YASIN, 2. FATHIMA, WIDOW OF MOHAMMED YASIN, 3. MOHAMMED MAZRAUL HAQ, 4. MOHAMMED ZAHEERUL HAQ, 5. MOHAMMED ANVAR HAQ, 6. MOHAMMED GOOSE, CRP NO.371/2011 2 7. ABDUL RAUF, 8. JAMALUDDIN, 9. MOHAMMED IFTHIKAR, (RESPONDENTS 1 TO 9 ARE RESIDING AT 23/7 DONTAD CROSS LANE, FIRST FLOOR, HAJI HABEEB BUILDING, DAMER GALLI,BOMBAY-9) 10. SAVITHRI, W/O. NARAYANA, PIN-671 534. 11. MOHANA, S/O. KRISHNAN, PIN-671 534. 12. NARAYANA, S/O. GOPALA, PIN-671 534. (RESPONDENTS 10 TO 12 ARE RESIDING AT KOTAVALAPPU IN KUDLU VILLAGE OF KASARAGOD TALUK, P.O.KUDLU). THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.371 of 2011 -------------------------------------- Dated this the 17th day of August, 2011. ORDER Petitioners are judgment debtors in E.P.No.176 of 1998 in O.S.No.271 of 1981 of the court of learned Principal Munsiff, Kasaragod. Respondents 1 to 9 obtained a decree for eviction of the first defendant and her children - respondents 10 to 12 from the building in the suit property claiming that the said property – 1.15 acres in R.S.No.72/1 originally belonged to one Kalyani from whom respondents 1 to 9 acquired it as per assignment deed. At that time respondents 10 to 12 were staying in plaint A schedule. The suit was decreed. Respondents 1 to 9 launched execution of the decree. In execution, petitioners were impleaded as judgment debtors 5 to 9 (being legal representatives of deceased first defendant). They resisted execution on various grounds. According to them, property originally belonged to one Koraga as per an oral lease and later that lease hold right was assigned in favour of one Krishnan. Kalyani was permitted to stay in one of the buildings in the property. However Kalyani obtained purchase certificate in the year 1975. Petitioners and others have challenged the order issuing purchase certificate to Kalyani before the appellate authority and the same is pending. It is contended that the father of petitioners (Raghavan, another son of first defendant) had filed O.S.No.90 of 1989 for declaration and partition of the same property. It is contended that in the Second Appeal arising from O.S.No.90 of 1989 symbolic delivery of the CRP No.371/2011 2 building (since petitioners were in occupation) was granted. In such a situation a further execution for physical delivery of the property is not permissible, it is contended. 2. So far as right claimed by petitioners is concerned, it is not disputed that the Original Suit and subsequently Second Appeal filed by their predecessor-in-interest ended in dismissal. It is also not disputed that predecessor-in-interest of respondents 1 to 9 had filed O.S.No.271 of 1981 against the deceased first defendant and respondents 10 to 12 for eviction and obtained a decree. That decree was also confirmed. Thus the right of parties has been concluded. 3. On the question whether symbolic delivery was effected, even petitioners are not sure about that. At any rate, that order was passed at a time when the Second Appeal was pending. In the circumstances, I do not find reason to interfere with the impugned order. 4. Learned counsel requested that petitioners may be given some time to vacate the building in the property. It is pointed out that the execution petition is posted on 19.08.2011 for delivery. I make it clear that it is open to the petitioners to request the executing court to grant some time to vacate the premises on condition that they filed affidavit in the executing court undertaking that on the expiry of time that may be granted by the executing court they will vacate the premises without putting forth any claim or objection on any ground whatsoever. If any such request is made the executing court shall pass CRP No.371/2011 3 appropriate orders as circumstances warranted after hearing counsel for respondents 1 to 9/decree holders also. Civil revision is disposed of as above. I.A.No.1917 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks