IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 OP(C).No. 2837 of 2011(O) ------------------------- OS.70/1989 of ADDITIONAL DISTRICT COURT-II, MAVELIKKARA ................................. PETITIONER --------------- KABEERKUTTY, SOFIA COTTAGE, KIZHAKKANMUTHUR, KUTTAPUZHA, THIRUVALLA REPRESENTED BY POWER OF ATTORNEY SALIM, S/O.THATTANAPPALLIL KIZHAKKETHIL MUHAMMED KUNJU, ELIPPAKULAM P.O., VALLIKUNNAM, THIRUVALLA. BY ADV. SRI.K.G.BALASUBRAMANIAN SRI.T.GOPALAKRISHNAN RESPONDENT(S): -------------------- 1. SULAIMAN RAWTHER, S/O KOCHUPILLA RAWTHER, MUZHANGODI THARAYIL, PEROORKARAZHMA, THAMARAKULAM P.O., 690530. 2. SADATH, S/O SULAIMAN RAWTHER, THAZNIMANZIL, CHUNAKKARA THEKKUMMURI,CHUNAKKARA 690534. 3. SALAMATH, S/O SULAIMAN RAWTHER, MUZHANGODI THARAYIL, PEROORKARAZHMA, THAMARAKULAM PO 690530. R2 BY ADV. SRI.P.B. SUBRAMANYAN R3 BY SRI.S.V. BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV. SRI.P.B.KRISHNAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: bka ...2 OP (Civil) 2837 of 2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGMENT DATED 10.12.2009 IN AS 243/94 & AS 341/1994 P2: COPY OF EA 126/2011 IN OS 70/1989 IN THE COURT BELOW P3: COPY OF OBJECTION TO EXT. P2 P4: COPY OF EA 127/2011 IN THE COURT BELOW P5: COPY OF ORDER DATED 14.07.2011 OF THE COURT BELOW RESPONDENT'S EXHIBITS: NIL TRUE COPY PS TO JUDGE bka THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2837 of 2011 ==================================== Dated this the 29th day of September, 2011 J U D G M E N T Petitioner in whose favour there is a decree for possession of the suit property as confirmed by this Court in Ext.P1, judgment sought execution of that decree in E.P. No.9 of 2008 in O.S. No.70 of 1989 of the court of learned Additional District Judge-II, Mavelikkara. In the course of execution proceedings it is alleged that first respondent-judgment debtor committed waste in the property and thereon petitioner filed E.A. No.127 of 2011 to appoint a Commissioner to assess the damages. Respondents 2 and 3 who are the children of the first respondent filed Ext.P2, application (E.A. No.126 of 2011) labeling it as one under Rule 58 of Order XXI and Section 47 of the Code of Civil procedure (for short, “the Code”) claiming right over the decree schedule property as per settlement deed Nos.434 of 1999 and 435 of 1999 dated 11.03.1999 and 12.03.1999, respectively executed by the first respondent in favour of respondents 2 and 3. Respondents 2 and 3 filed E.A. No.127 of 2011 to appoint an Advocate Commissioner to measure the properties with the assistance of a O.P(C) No. 2837 of 2011 -: 2 :- Surveyor and assess cost of construction of the building with the aid of a Civil Engineer. The executing court passed Ext.P5, order on E.A. No.127 of 2011. That order is under challenge. It is contended by learned counsel for petitioner that no claim under Rule 58 of Order XXI of the Code could be sustained as the decree is for recovery of possession of the property and assuming that it is an anticipatory obstruction, then also the claim of respondents 2 and 3 in Ext.P2, application cannot stand since the transactions respondents 2 and 3 rely upon in their favour are made pendente lite and hence hit by Section 52 of the Transfer of Property Act. It is further contended by learned counsel that respondents 2 and 3 being persons claiming under the first respondent-judgment debtor are bound by the decree and the question of any obstruction by respondents 2 and 3 does not arise. Learned counsel contended that the executing court ought to have rejected Ext.P2, application outright. It is also contended that the executing court proceeded on the assumption that allowing the application for commission prayed by respondents 2 and 3 was not consented by the petitioner. According to the learned counsel what petitioner agreed to is for allowing the application filed by him for appointment of a commission to O.P(C) No. 2837 of 2011 -: 3 :- assess damages on account of waste (allegedly) committed by the first respondent. 2. Learned Senior Advocate appearing for respondents 2 and 3 contended that in this Original Petition the limited prayer is to set aside Ext.P5, order and it is not necessary for this Court to go into the maintainability of Ext.P2, application on the grounds pleaded by learned counsel for petitioner. It is contended by learned Senior Advocate that so far as Ext.P5, order is concerned, it is a consented order and challenge to it cannot stand. According to the learned Senior Advocate remedy available to the petitioner is to seek review of Ext.P5, order. 3. It is seen from Ext.P5, order that it is passed on E.A. No.127 of 2011, an application filed by respondents 2 and 3 for appointment of a survey commission and a Civil Engineer. Though the order is styled as a “common order” it is seen that what is disposed of is E.A. No.127 of 2011 and the order states that both parties admitted the appointment of a commission. In that view of the matter if the said observation is a mistake as the learned counsel for petitioner contends, proper course open to the petitioner is to ask for a review of Ext.P5, order. It is not disputed before me that for seeking review in execution if the O.P(C) No. 2837 of 2011 -: 4 :- application is filed beyond the prescribed time Section 5 of the Limitation Act can come in aid of petitioner. 4. In the view of what I have sated above, petitioner is permitted to file appropriate application for review of Ext.P5, order as provided under the law. Contention raised by petitioner as to the sustainability of Ext.P2, application is something which he can urge before the learned Additional District Judge at the appropriate time. Resultantly, with the above observation and direction this Original Petition is disposed of. Learned Additional District Judge- II, Mavelikkara is directed to dispose of the pending applications as well as the application for review that may be filed by petitioner as early as possible. THOMAS P. JOSEPH, JUDGE. vsv