IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 OP(C).No. 767 of 2011(O) ------------------------------- AGAINST THE ORDER DATED 03/02/2011 IN IA.765/2010 IN OS.87/2008 of SUB COURT,THODUPUZHA .................... PETITIONERS ---------------- 1. GOUTHAMAN,S/O.ANANTHAN,MADATHUPARAMBIL, CHITTOOR KARA, MANAKKAD VILLAGE, THODUPUZHA. 2. VALSA,W/O.GOUTHAMAN, MADATHUPARAMBIL, CHITTOOR KARA, MANAKKAD VILLAGE, THODUPUZHA. BY ADVS. SMT.S.KARTHIKA SMT.K.P.GEETHA MANI RESPONDENT(S): -------------------- XAVIER,S/O.THOMAS, CHARATHUMKALAYIL HOUSE,ERAVIMANGALAM KARA, MUTTUCHIRA VILLAGE,VAIKOM TALUK, 684 142. BY ADV. SRI.E.J.THOMAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 767/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF SALE CERTIFICATE ISSUED IN FAVOUR OF THE RESPONDENT BY THE SUB COURT, KOTTAYAM ON 27/03/2003 IN E.P.101/1999. P2: COPY OF THE PLAINT IN O.S. NO.87/2008 FILED BY THE RESPONDENT DATED 27/08/2008 BEFORE THE HONOURABLE SUB COURT, THODUPUZHA. P3: COPY OF WRITTEN STATEMENT FILED BY THE 2ND PETITIONER IN O.S. NO.87/2008 DATED 10/06/2009. P4: COPY OF I.A. NO.765/2010 IN O.S. NO. 87/2008 FILED BY THE RESPONDENT DATED 29/10/2010. P5: COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER IN I.A NO.765/2010 IN O.S. NO.87/2008 DATED 08/11/2010. P6: COPY OF ORDER DATED 03/02/2011 IN I.A. NO.765/2010 IN O.S. NO.87/2008 OF SUB COURT, THODUPUZHA. RESPONDENT'S EXHIBITS: R1: COPY OF THE CERTIFIED COPY OF THE PLAINT IN O.S. NO.829/1994 ON THE FILES OF THE SUB COURT, KOTTAYAM. R2: COPY OF THE CERTIFIED COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO.829/1994. R3: COPY OF THE CERTIFIED COPY OF THE JUDGMENT IN O.S. NO.829/94 OF THE SUB COURT, KOTTAYAM. /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.767 of 2011 -------------------------------------- Dated this the 23rd day of August, 2011. JUDGMENT Ext.P6, order dated 03.02.2011 on I.A.No.765 of 2010 in O.S.No.87 of 2008 of the court of learned Sub Judge, Thodupuzha is under challenge. According to the petitioners the suit itself is not maintainable and in spite of 2nd petitioner filing written statement challenging maintainability of the suit, learned Sub Judge has proceeded to dispose of I.A.No.765 of 2010 without deciding the issue regarding maintainability. 2. Respondent obtained a decree for recovery of money against the petitioner in O.S.No.829 of 1994 and in execution of that decree item Nos.1 and 2 allegedly belonging to the petitioners were brought up for sale and allowed to be purchased by the respondent in auction sale. Sale certificate was issued to the respondent on 27.03.2003 but the respondent did not attempt to take delivery of the property through the executing court in O.S.No.829 of 1994. Instead, on 27.08.2008 respondent filed O.S.No.87 of 2008 before the learned Sub Judge for recovery of possession of the property and for other reliefs. Learned counsel contends that O.S.No.87 of 2008 is not maintainable since remedy of respondent was to seek delivery under Rule 95 of Order 21 of the Code of Civil Procedure (for short, “the Code”) in execution of the decree in O.S.No.829 of 1994 and that once the period of one year prescribed under OP(C) No.767 of 2011 2 Article 134 of the Limitation Act has expired, a separate suit based on title is not maintainable. Grievance of the petitioners is that though such a contention is raised by the 2nd petitioner in his written statement, learned Sub Judge has proceeded to dispose of I.A.No.765 of 2010 by appointing an Advocate Commissioner without deciding the maintainability of the suit. Learned counsel has placed reliance on the decision in Unnikrishnan v. Kunhibeevi (2011 (1) KLT 508) to contend that the suit is not maintainable and the remedy of respondent was in execution of the decree in O.S.No.829 of 1994. In response learned counsel for respondent placing reliance on the decision in Balakrishnan v. Malaiyandi Konar (2006 (1) KLT 926) contended that notwithstanding the easier remedy provided under Rule 95 of Order XXI of the Code it is open to the respondent to prefer a fresh suit within the period of limitation as provided under law. 3. It is not necessary for me to go into the question whether O.S.No.87 of 2008 is maintainable or not as contended by the parties. For, that is a matter to be decided by learned Sub Judge. By Ext.P6, order on I.A.No.765 of 2010 learned Sub Judge has appointed an Advocate Commissioner to identify the property. I do not find reason to interfere. Before further proceeding in the suit are taken, maintainability question if raised by petitioners could be decided if it falls under Rule 2 of Order XIV of the Code. OP(C) No.767 of 2011 3 Resultantly this Original Petition is disposed of directing learned Sub Judge, Thodupuzha to decide the issue regarding maintainability of the suit if it arises from the pleadings of petitioners and if the issue could be decided under Rule 2 of Order XIV of the Code before further proceedings in the suit are taken. But I make it clear that I am not interfering with the proceeding of the Advocate Commissioner pursuant to the order on I.A.No.765 of 2010. THOMAS P.JOSEPH, Judge. cks