IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 23783 of 2009(O) -------------------------- E.A.NO.106 OF 2009 IN E.P.116 OF 2008 IN OS.655/1998 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER(S): ------------------------ PADMAKARAN, S/O.KOCHURAMAN, MUTHIRA KANDATHIL VEEDU, THOTTATHUM MURI, PATHIYOOR, KAYAMKULAM. BY ADVS. MR.P.SREEKUMAR, MR.K.S.MANU (PUNUKKONNOOR). RESPONDENT(S): -------------------------- 1. SARAMMA KOCHI, KOCHALUM MOODU, KALAVOOR KIZHAKKETHIL, PATHIYOOR KIZHAKKU KAYAMKULAM. 2. LATHA KOSHY OF DO....DO.... 3. REJI KOSHY OF DO....DO... 4. LEENA K.KOSHY DO...DO.. 5. MATHEW K. KOSHY OF DO...DO... 6. PEETHAMBARAN, S/O. KOCHURAMAN, NIZHA BHAVANATHIL, THOTTATHUM MURI, PATHIYOOR, KAYAMKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.23783 of 2009 - O --------------------------------- Dated this the 21st day of August, 2009 JUDGMENT The writ petition is filed seeking the following relief: “To call for the records leading to Exhibit P2 and set aside the same.” 2. Petitioner moved an application under Order XXI Rule 97 CPC resisting delivery and possession ordered over a building in E.P.No.116 of 2008 in execution proceedings of the decree passed in O.S.No.655 of 1998 on the file of the Munsiff Court, Kayamkulam. He advanced a case that the judgment debtor abandoned the decree schedule shop room ten years ago and ever since he continued in possession and is operating the business in the shop room. So much so, he is not liable to be evicted under the decree passed in the suit against the judgment debtor. The decree holder filed objections contending that the petitioner has no independent right, title and interest over the decree schedule shop room covered by the decree. Learned Munsiff, after hearing both sides, dismissed the application under the impugned over, copy of which is produced as P1. Propriety W.P.(C).No.23783 of 2009 - O 2 and correctness of P1 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. 4. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents/decree holders is necessary, and hence it is dispensed with. 5. The learned counsel for the petitioner contended that when an application is moved under Order XXI Rule 97 CPC, an adjudication of the right, title and interest of the claimant over the schedule property is absolutely essential and a dismissal of the petition in limine without such an adjudication is not only improper, but, illegal. Perusing P1 order passed by the learned Munsiff, I find there is no merit in the submissions made by the counsel. To sustain an application moved under Order XXI Rule 97 CPC to resist the execution of a decree, mere possession by the claimant over the suit property or building is not sufficient. He must show his right to possession independent of the W.P.(C).No.23783 of 2009 - O 3 judgment debtor. Petitioner is none other than the brother of the judgment debtor, as seen from P1 order. His case was that his brother had abandoned the building ten years ago and thereby he came into possession of the building. He has not shown that he has got a right in the property which is not affected or which cannot be affected by the decree passed against his brother. When frivolous petitions are filed under Order XXI Rule 97 CPC to thwart and obstruct the delivery of the property in execution, there is no need for any adjudication of such frivolous claims as such petitions deserve only rejection in limine. There is no merit in the writ petition and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-