IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 19785 of 2010(O) -------------------------- AGAINST THE ORDER DATED 17/05/2010 IN EP 80/1979 IN OS.67/1957 of II ADDL.MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER(S): --------------- DEEPA, D/O.SEELAMMA, AGED 32 YEARS, CHARUVILA VEEDU, PULINKUDI, KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): --------------- 1. SIVAN PILLAI SADASIVAN PILLAI, M.S.BANGLOW, PUNNAKULAM, KOTTUKAL DESOM, KOTTUKAL VILLAGE - 695 501. 2. PADMANABHA PILLAI AYYAPPAN PILLAI, AYANIVILA PUTHAN VEEDU, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 3. KAMALAMMA PILLAI RADHAMMA PILLAI, PALLIVILAKATHU VEEDU, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 4. RADHAMMA PILLA VALSALA, PALLIVILAKATHU VEEDU, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 5. VELAYUDHAN NAIR VENU, PALLIVILAKATHU VEEDU, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 6. VELAYUDHAN NAIR MURALI, PALLIVILAKATHU VEEDU, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 7. RADHAMMA PILLAI VANAJAM, PALLIVILAKATHU VEEDU, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. WP(C) NO.19785/2010 3 8. VELAYUDHAN NAIR MURUGAN, PALLIVILAKATHU VEEDU, KOTTUKAL DESOM. THIRUVANANTHAPURAM 695 501. 9. KOCHAPPI NADAR KRISHNA NADAR, THANNININNA KUZHIYAM VILA PURAYIDATHIL, CHOVVARE, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 10. RAMAN PILLAI SIVASANKARA PILLAI, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 11. CHELLAPPAN PILLAI ALIAS RAMAN PILLAI, AYYAPPAN PILLAI, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 12. SIVASANKARA PILLAI MANIKANTAN NAIR, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 13. KALYANI PILLAI KARTHI PILLAI, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 14. RAMAN PILLAI PARAMESWARAN NAIR, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 15. KALYANI PILLAI KAMALAMMA PILLAI, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 16. KALYANI PILLAI OMANA AMMA, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 17. KALIYAMMA PILLAI KALYANI PILLAI, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 18. JANAKI PILLAI PONNAMMA PILLAI, PULLARAVILAKATHU VEEDU, PANDARAVILA, KOTTUKAL DESOM, THIRUVANANTHAPURAM 695 501. 19. M.SEELAMMA, CHARUVILA VEEDU, PULINKUDI KOTTUKAL VILLAGE, THIRUVANANTHAPURAM 695 501. 20. SUGANDA, D/O.SEELAMMA, CHARUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM 695 501. ADV. SRI.P.B.SURESH KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19785 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT This litigation started in the year 1957 in the form of a suit for redemption of mortgage. Respondent No.1/decree holder No.3 has in his favour a decree for redemption of mortgage which was confirmed by various courts. He filed E.P.No.80 of 1979 on 01.06.1979. Defendant No.1 filed an application for issue of a commission to assess the value of improvements payable to him. Advocate Commissioner filed his report on 23.12.1983. There was objection to that report. Executing court held that Advocate Commissioner committed mistake in assessing the value of improvements and set aside the report. Defendant No.15 challenged that order in C.R.P.No.2777 of 1984 but this Court refused to interfere with the order passed by executing court. E.P.No.80 of 1979 was dismissed on 07.07.2008 on the ground of limitation and since decree holder No.3 was found to be not competent to execute the decree on behalf of the Tarwad. Dismissal of execution petition was challenged in C.R.P.No.756 of 2008 and this Court as per order dated 26.03.2010 allowed the Civil Revision Petition and directed parties to appear in the executing court on 09.04.2010. This Court also directed executing court to dispose of the proceeding as expeditiously as possible at any rate, within a period of six months from the date of receipt of records and copy of the order. There was a further direction that executing court shall post the execution petition atleast once in every two weeks WP(C) No.19785/2010 2 and monitor progress of proceedings in execution of the decree. Learned Munsiff was directed to forward report to this Court once in every two weeks informing progress of the execution proceedings. After dismissal of C.R.P.No.756 of 2008 I am told that a stranger filed E.A.No.399 of 2010 claiming right over the property which the executing court dismissed as per Ext.P4, order. Amin was directed to deliver the property on 25.05.2010. Petitioner then filed W.P.(C) No.15539 of 2010 for a direction to issue copy of order dated 17.05.2010 (ordering delivery of property on 25.05.2010) and requesting to keep the order to deliver the property in abeyance. This Court disposed of that Writ Petition vide Ext.P5, judgment. Petitioner/additional judgment debtor No.27 then pointed out that direction contained in Ext.P2, order of the executing court to appoint Advocate Commissioner to assess value of improvements which was confirmed by this Court in C.R.P.No.2777 of 1984 was not complied. Now the petitioner/additional judgment debtor No.27 seeks a direction to the executing court to implement Ext.P2, order dated 06.07.1984 and to keep Ext.P6, order dated 17.05.2010 (ordering delivery of the property) in abeyance until fresh report of the Advocate Commissioner is brought on record. Learned counsel contends that value of improvements has to be assessed. I have heard learned counsel for respondent No.1/decree holder No.3. It is agreed by both sides that it is not necessary to hear other respondents who are members of the Tarward to which respondent No.1 belong. 2. Fact remained that Ext.P2, order passed by the executing court has WP(C) No.19785/2010 3 not so far been complied. As such execution cannot proceed. Ext.P2, order has to be complied and value of improvements payable to the party concerned has to be assessed as stated in Ext.P2, order and as confirmed by this Court. Learned counsel for respondent No.1 also did not dispute that position. His request is only that since every attempt is being made to prolong delivery of property and parties have been litigating from 1957 onwards which this Court took note of while disposing of C.R.P.No.756 of 2008 and issued direction for expeditious completion of execution proceeding this Court may direct executing court to dispose of the matter in a time bound manner. 3. I must bear in mind that in this Writ Petition the only challenge raised by the petitioner is as to non-compliance of Ext.P2, order. That means, going by the Writ Petition and the contention of the petitioner, the only impediment of effecting delivery of property is valuation of the improvements and deposit of money payable to the party concerned. Having regard to this circumstances I direct the executing court to comply with Ext.P2, order as confirmed by this Court. I also direct that executing court shall ensure that Ext.P2 is complied at the earliest so that as directed by this Court in the order in C.R.P.No.756 of 2008 execution proceedings can be completed at the earliest. Executing court shall issue appropriate direction to the Advocate Commissioner to submit his report as early as possible. Executing court shall also comply with the direction issued by this Court in the order dated 26.03.2010 in C.R.P.No.756 of 2008 as to expeditious disposal of the proceeding, its monitoring and WP(C) No.19785/2010 4 submission of reports. Executing court shall keep in abeyance the proceedings for delivery of the property until the value of improvements is assessed as directed in Ext.P2 and confirmed by this Court and the amount is deposited by respondent No.1/decree holder No.3. Writ Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks